62000CC0472_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1.
This is an appeal against the judgment of the Court of First Instance of 24 October 2000 in Case T-178/98, (2) in which the Commission was ordered to pay Fresh Marine Company AS ( "Fresh Marine"
) compensation for the damage suffered by it in connection with Commission Regulation (EC) No 2529/97, (3) by which the Commission introduced provisional anti-dumping and countervailing duties on imports of farmed Atlantic salmon originating in Norway.
II ─ Legal background and facts
A ─
Legal background
2.
Article 8(3) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (4) ( "the Basic Regulation"
) provides:
"Undertakings offered need not be accepted if their acceptance is considered impractical, if such as where the number of actual or potential exporters is too great, or for other reasons, including reasons of general policy. The exporter concerned may be provided with the reasons for which it is proposed to reject the offer of an undertaking and may be given an opportunity to make comments thereon. The reasons for rejection shall be set out in the definitive decision."
3.
Article 8(10) of the Basic Regulation states:
"A provisional duty may, after consultation, be imposed in accordance with Article 7 on the basis of the best information available, where there is reason to believe that an undertaking is being breached, or in case of breach or withdrawal of an undertaking where the investigation which led to the undertaking has not been concluded."
4.
Article 18(4) of the Basic Regulation states:
"If evidence or information is not accepted, the supplying party shall be informed forthwith of the reasons therefor and shall be granted an opportunity to provide further explanations within the time limit specified. If the explanations are considered unsatisfactory, the reasons for rejection of such evidence or information shall be disclosed and given in published findings."
B ─
Facts
5.
The judgment of the Court of First Instance is based on the following facts: (5)
6.
Fresh Marine is a company established in 1992 and incorporated under Norwegian law, which specialises in the sale of farmed Atlantic salmon. Following complaints lodged in July 1996, the Commission announced on 31 August 1996, by two separate notices published in theOfficial Journal of the European Communities
, (6) the initiation of an anti-dumping and an anti-subsidy proceeding concerning imports of farmed Atlantic salmon originating in Norway.
7.
The Commission sought and verified all the information deemed necessary for the purpose of its definitive findings. Following that investigation, it found that it was necessary to impose definitive anti-dumping and countervailing measures in order to eliminate the harmful effects of the dumped imports and the subsidies complained of.
8.
On 17 June 1997, Fresh Marine, having been informed of the Commission's findings, offered an undertaking pursuant to Article 8 of the Basic Regulation and Council Regulation (EC) No 3284/94 of 22 December 1994 on protection against subsidised imports from countries not members of the European Community. (7) Among other things, it undertook that the average price, per quarter, for its exports of farmed Atlantic salmon gutted head-on would not be lower than ECU 3.25/kg and that the price of each individual transaction would not be less than 85% of the abovementioned average minimum price, save in exceptional cases and not exceeding 2% of the total quantity of sales to the Community during the relevant quarter.
9.
The Commission accepted the undertakings offered by a number of Norwegian exporters of farmed Atlantic salmon, including that of Fresh Marine. (8) The anti-dumping and anti-subsidy proceedings were terminated with regard to those exporters. Fresh Marine's undertaking entered into force on 1 July 1997. On the same day, the Council introduced a definitive anti-dumping duty (9) and a definitive countervailing duty. (10)
10.
Pursuant to Article 1(2) of each of those two regulations, imports into the Community of farmed Atlantic salmon originating in Norway produced by Fresh Marine were exempt from those duties on account of the acceptance of Fresh Marine's undertaking by the Commission.
11.
On 22 October 1997, Fresh Marine sent the Commission a report on all its exports of farmed Atlantic salmon to the Community during the third quarter of 1997 ( "the October 1997 report"
). On 16 December 1997, the Commission adopted Regulation No 2529/97. That regulation imposed a provisional anti-dumping duty of ECU 0.32 per kilo and a provisional countervailing duty of 3.8% on imports of farmed Atlantic salmon originating in Norway produced by Fresh Marine and removed Fresh Marine's name from the Annex to Decision 97/634 (11) listing those companies whose undertakings had been accepted. That regulation entered into force on 18 December 1997. Its period of application was fixed at four months. The parties concerned were invited to make their views known in writing and apply for a hearing by the Commission within one month of the date of entry into force of the regulation, that is to say by 17 January 1998 at the latest.
12.
By letter of 19 December 1997, the Commission informed Fresh Marine of the essential facts and considerations on the basis of which the provisional duties had been imposed on its imports into the Community. It stated that examination of the October 1997 report had shown that the applicant had exported farmed Atlantic salmon, gutted head-on, at an average price of ECU 3.22/kg, that is at a price lower than the minimum average price set in its undertaking of 17 June 1997, leading the Commission to believe that the company had not honoured its undertaking. To that letter was attached a copy of the data on the basis of which the Commission had come to that conclusion.
13.
By fax of 22 December 1997, Fresh Marine complained that the Commission had manipulated the October 1997 report by deleting a number of lines which were intended to cancel lines containing errors. Pointing out that it had ceased all exports to the Community since the entry into force of Regulation No 2529/97, and was suffering considerable loss as a result, it asked for the immediate lifting of the sanctions taken against it.
14.
By letter of 5 January 1998, the Commission rejected Fresh Marine's allegations. It explained that it had decided to delete a number of lines from the October 1997 report containing quantities and values preceded by a minus sign, which, in the absence of explanations in the report, could not be offset against the corresponding invoices. It added that, if the applicant sent it in good time a proper report showing that all sales transactions, net of credit notes, during the third quarter of 1997 were, on average, above the minimum price, the Commission would be prepared to reconsider its position. It also emphasised the provisional nature of the duties imposed by Regulation No 2529/97 and pointed out to Fresh Marine that it could have chosen to continue to export to the Community by providing the relevant customs authorities of the Member States concerned with an appropriate guarantee in regard to its
"DDP"
( "delivered duty paid"
) sales.
15.
On 6 January 1998, Fresh Marine sent the Commission an amended version of the October 1997 report. On 8 January 1998, the Commission sent Fresh Marine an amended version of that report, modified in accordance with the explanations provided by Fresh Marine the day before. Fresh Marine was asked to let the Commission know in writing whether it agreed with the content of the new version. Fresh Marine confirmed that by fax of 9 January 1998, stating that it had nothing further to add. It pointed to considerable business losses, insisting that the situation be resolved and the provisional duties abolished before the expiry of the period prescribed by Regulation No 2529/97 within which interested parties could make their points of view known.
16.
By letter of 30 January 1998, the Commission informed Fresh Marine that it now took the view that the applicant had, during the third quarter of 1997, complied with the minimum export price fixed in its undertaking in respect of salmon, gutted head-on, and that, accordingly, there was no longer any reason to believe that the undertaking had been breached.
17.
By letter of 2 February 1998, the Commission informed the applicant that it intended to propose to the Council that it should not impose definitive duties and that, accordingly, the provisional duties imposed by Regulation No 2529/97 ought not to be confirmed. It added that, under Article 10(2) of the Basic Regulation, the amounts lodged as provisional duties were to be released in so far as there was no decision by the Council to collect all or part of them definitively.
18.
On 23 March 1998, the Commission adopted Regulation (EC) No 651/98 (12). Under that regulation, the provisional anti-dumping and countervailing duties imposed by Regulation No 2529/97 were repealed so far as concerned imports of Fresh Marine's products. Its undertaking was moreover reinstated with effect from 25 March 1998.
19.
On 27 October 1998, Fresh Marine brought an action for damages before the Court of First Instance, seeking an order against the Commission to make good the damage it suffered following the adoption of the provisional duties totalling NOK 2 115 000.
III ─ The contested judgment
A ─
Unlawfulness of the conduct alleged against the Commission
20.
With respect to the question of unlawfulness, the Court of First Instance states that, although the measures of the Council and Commission in connection with a proceeding relating to the possible adoption of anti-dumping measures must in principle be regarded as constituting legislative action involving choices of economic policy, so that the Community can incur liability by virtue of such measures only if there has been a sufficiently serious breach of a superior rule of law for the protection of individuals, the special features of the present case must be pointed out. In the present case, the damage at issue arose from the allegedly unlawful conduct of the Commission when it examined the October 1997 report with the intention of checking whether Fresh Marine had complied during the third quarter of 1997 with the undertaking, the acceptance of which had brought to an end the anti-dumping and anti-subsidy investigation in regard to it. That allegedly unlawful conduct led the Commission to believe that the applicant had broken its undertaking. It took place in the course of an administrative operation which specifically and exclusively concerned Fresh Marine. That operation did not involve any choices of economic policy and conferred on the Commission only very little or no discretion. The Court of First Instance concluded further that it was true that the alleged unlawfulness of the Commission's conduct caused the alleged damage only when, and because, it was confirmed by the imposition of provisional duties on imports of Fresh Marine's products within the framework of Regulation No 2529/97. However, the Commission, in that regulation, did no more with regard to the applicant than draw the appropriate provisional conclusions from its analysis of the abovementioned report, in particular from the level of the average price of exports charged by Fresh Marine during the period covered by that report. (13)
21.
Relying on the Court of Justice's judgment in
Bergaderm
, (14) the Court of First Instance took the view that a mere infringement of Community law was sufficient to lead to the non-contractual liability of the Community. In particular, a finding of an error which, in analogous circumstances, an administrative authority exercising ordinary care and diligence would not have committed supports the conclusion that the conduct of the Community institution was unlawful in such a way as to render the Community liable. It is therefore necessary to examine whether the Commission, when monitoring compliance by Fresh Marine with its undertaking on the basis of the October 1997 report, committed an error which an administrative authority exercising ordinary care and diligence would not have committed in the same circumstances. (15)
22.
As the Court of First Instance found, the October 1997 report, which Fresh Marine sent to the Commission on computer diskette, contains 200 lines, all of them relating to sales on the Community market of farmed Atlantic salmon, gutted head-on ( "Presentation B"
products in the terms of the undertaking provided by the applicant). It is set out in a table divided into 27 columns. Of the 200 lines, 12 are negative entries. The last page of that report contains the following final entries:
"...
Sum of Qtyw (kg) 477 725.50
Sum of CIF value * Qtyw 1 577 762.37
Sum of Qtyw sold at below 85% of minimum price in kg 0.00
...
"
. (16)
23.
On reading those final entries in the October 1997 report, the Court of First Instance found that, at first sight, it was possible to adopt the view that Fresh Marine had observed its undertaking during the period covered by that report. Indeed, it showed that it had not concluded any individual transaction on the basis of a price below the threshold of 85% of the average minimum price of ECU 3.25 per kg fixed in the undertaking for its exports of farmed Atlantic salmon gutted head-on, and that their average price during the period in question had been greater than the abovementioned minimum average price, as it had been ECU 3.3026 per kg (ECU 1 577 762.37/477 725.50 kg). Even if it is accepted that the terms of Fresh Marine's undertaking did not provide for the possibility of including negative values in the quarterly sales reports, the Commission could not, when faced with a report which, at first glance, suggested that Fresh Marine had complied with its undertaking, take it upon itself unilaterally to change the content of that report by deleting those lines containing negative values and replacing them with other values based on its own calculations ─ on the basis of the report thus amended ─ of the average export price charged by Fresh Marine during the period in question, without explaining to Fresh Marine the reasons prompting it to ignore those final entries and without checking with Fresh Marine whether the changes so made affected the reliability of the information provided in order to monitor compliance with the undertaking. Having decided not to accept the first impression given by the October 1997 report, which was favourable to Fresh Marine, the Commission was bound to exercise due care in interpreting correctly the data provided in that report, on which it intended to base its finding as to whether or not the applicant's conduct amounted to compliance with the undertaking during the period in question. (17)
24.
The Court of First Instance found that Fresh Marine could not rely on the provisions of Article 8(10) of the Basic Regulation. That provision enables the Commission, where there are grounds for believing on the basis of the best information available to it that an undertaking which it has initially accepted in the context of an anti-dumping or anti-subsidy proceeding has been breached, to take in good time any necessary provisional measures in order to protect the interests of the Community industry, without prejudice to a subsequent examination of the merits in order to check whether the undertaking in question has in fact been breached. However, the October 1997 report, in particular its final entries, suggested that Fresh Marine had complied with its undertaking. It was after it had amended that report on its own initiative, without taking the precaution of asking Fresh Marine what possible impact its unilateral action might have on the reliability of the information which Fresh Marine had provided, that the Commission concluded that there had been an apparent breach of the undertaking by Fresh Marine. The data amended in that way evidently cannot therefore be considered the best information, within the meaning of Article 8 of the Basic Regulation. (18)
25.
The fact that in the run-up to the end-of-year celebrations, a particularly important period for salmon sales, the Commission was obliged to analyse more than 90 reports similar to the October 1997 report cannot, in the Court of First Instance's view, justify unilateral changes to that report by the Commission, when the report appeared to show, at first sight, that Fresh Marine had complied with the undertaking. Moreover, as soon as the Commission chose to amend that report, which, prima facie, suggested that Fresh Marine had complied with its undertaking, the urgency of the situation could not excuse a relaxation of the duty of diligence incumbent upon the Commission when analysing the evidence on which it intended to base its finding. When analysing the October 1997 report, the Commission therefore committed an error which would not have been committed in similar circumstances by an administrative authority exercising ordinary care and diligence. (19)
26.
However, the Court of First Instance found that Fresh Marine's conduct was not blameless either. As the Commission observed, Fresh Marine offered no explanations for the lines of the October 1997 report which contained negative values. In view of the complexity of that report, the lack of obvious links between the erroneous lines and those containing negative values, and the ambiguity of those values, Fresh Marine should on its own initiative have accompanied the report with the explanations necessary to understand it. By sending the October 1997 report without any comment to that effect, Fresh Marine was guilty of negligence which, as the letter which the Commission sent it on 5 January 1998 shows, confused the Commission's officials. Clarification in that regard would have allowed them to understand from the outset that there was good reason for those negative values being inserted and to realise that, taken together, the data relating to the various sales made by Fresh Marine on the Community market during the quarter in question confirmed the conclusion drawn from the October 1997 report, namely that Fresh Marine had complied with its undertaking during the period in question. (20)
27.
The analysis makes clear that Fresh Marine and the Commission were equally at fault during the investigation as to whether the applicant had complied with its undertaking during the third quarter of 1997, at the end of which the Commission found that there had been an apparent breach of the undertaking making it necessary to take provisional measures against imports of Fresh Marine's products by Regulation No 2529/97. For its part, Fresh Marine, by failing of its own accord to append to its October 1997 report the explanations required for the correct understanding of the negative values appearing in it, showed such negligence as would never have been committed by a trader exercising ordinary care and diligence. Even taking into consideration such irregular conduct on the part of Fresh Marine and the confusion which such conduct may have caused when the report was read, the Commission's reaction, in unilaterally amending that report even though it suggested, prima facie, that Fresh Marine had complied with its undertaking during the period in question, was disproportionate and therefore unlawful, and could not be excused in any circumstances. (21)
B ─
The damage and the causal link between it and the Commission's conduct
28.
So far as concerns the loss of profit between 18 December 1997 and 25 March 1998, the Court of First Instance states that the figures given by the Commission for exports of farmed Atlantic salmon by Fresh Marine to the Community between July 1997 and September 1998 show that Fresh Marine wholly suspended its exports during the period from approximately mid-December 1997 to the end of March 1998. That suspension of its business activities on the Community market was confirmed by the auditing firm's certificate, which states:
"[W]e hereby confirm that according to the books of the [applicant], no sales of Atlantic salmon have been made to the Community in the period between 18 December 1997 and 25 March 1998." (22)
29.
In light of those circumstances, the Court of First Instance found it necessary to assess the amount of the loss of profit suffered by Fresh Marine as a result of the suspension of its exports to the Community between 18 December 1997 and 25 March 1998. That loss of profit equated to the profit margin which Fresh Marine would have achieved if it had continued to export to the Community during that period. In order to make the assessment, it was necessary first to determine at what rate the applicant's exports to the Community diminished following the entry into force on 1 July 1997 of its undertaking, which would in any event still have applied if it had continued to export to the Community during the period in question. For a reliable calculation, the trends in the applicant's sales within the Community during the period from 1 July to 17 December in the years 1996 and 1997 had to be examined. The loss of profit suffered by Fresh Marine therefore had to be fixed at NOK 292 000 in respect of the period between 18 December 1997 and 31 January 1998, NOK 135 000 in respect of February 1998 and NOK 150 000 in respect of the period from 1 to 25 March 1998. (23)
30.
Further, the Court of First Instance considers whether there is a causal link between the loss or damage to the applicant's business and the wrongful conduct of the Commission, confirmed by Regulation No 2529/97. There is a causal link for the purposes of the second paragraph of Article 215 of the EC Treaty where there is a direct causal nexus between the fault committed by the institution concerned and the injury pleaded, the burden of proof of which rests on the applicant. The Community can be held liable only for damage which is a sufficiently direct consequence of the misconduct of the institution concerned. (24)
31.
In the Court of First Instance's view, it is clear from the abovementioned certificate issued by the firm of auditors that the period during which Fresh Marine suspended its exports to the Community coincides with that during which the provisional measures imposed by Regulation No 2529/97 applied to imports of its products. That indicates the existence of a causal link between the irregularities, in particular those committed by the Commission, giving rise to the imposition of provisional measures and Fresh Marine's loss of profit. It is, indeed, undeniable that, were it not for such irregularities and the provisional measures which followed them, Fresh Marine would have continued its exports to the Community in compliance with its undertaking. It would thus have suffered no loss of profit on the Community market. The misconduct of the Commission, when analysing the October 1997 report, which was confirmed by Regulation No 2529/97, is therefore causally linked with the loss or damage to the applicant's business. (25)
32.
However, the fact that the abovementioned periods coincide cannot be considered as the only proof that the whole of the loss of profits was caused exclusively by the irregularities which gave rise to the adoption of the provisional measures. In that regard, the Court of First Instance examines whether Fresh Marine showed reasonable diligence in limiting the extent of the damage which it claims to have suffered, a matter which the Commission disputes. (26)
33.
However, even supposing that Fresh Marine, which has not disputed the Commission's statements regarding the cost of an appropriate bank guarantee, had obtained one, it would have run an unusual commercial risk, beyond the level of risk inherent in any commercial enterprise, by exporting to the Community during the period when Regulation No 2529/97 was applicable to imports of its products. If, once that bank guarantee had been issued, it had, as the Commission suggests, decided to export to the Community at unchanged prices without passing on to its Community customers the amount of the provisional duties through the prices it charged, it would have run the risk of having to bear on its own the burden of those duties should they ever have been collected definitively. Since it was not able to tell at that time whether that would eventually be the case, it therefore had no option but to increase its export prices by the amount of those provisional duties. Having regard in particular to competition from Community companies selling salmon and from the numerous Norwegian exporters which had been able to continue to sell on the Community market within the terms of their undertakings during the period in question, Fresh Marine could reasonably have taken the view that there was no chance of finding an outlet for its products on that market during that period. The Court of First Instance finds that the absence of any attempt by the applicant to export its products to the Community during the period in question cannot therefore be regarded as a failure to fulfil the obligation to show reasonable diligence in mitigating the extent of the damage. (27)
34.
On the other hand, as is shown by the letters of 30 January and 2 February 1998 analysed above, the Commission did not take the necessary and appropriate measures which the party causing the damage must take where damage, such as that at issue here, is ongoing in order to limit the extent of the damage to which its misconduct, when it was verifying compliance by Fresh Marine with its undertaking, had contributed. Fresh Marine contributed to the same extent as the Commission in causing loss or damage to its business; however, continuation of that loss after the end of January 1998 was exclusively due to a failure by the Commission to exercise due care; even though the explanations which it had obtained from Fresh Marine had definitely made it possible to correct their respective prior errors and removed any reason for it to continue to believe that the undertaking had been breached, the Commission delayed, for no apparent reason, in regularising the applicant's situation by withdrawing the provisional measures originally imposed against it. The Commission therefore had to be held liable for one half of the loss of profit suffered by the applicant between 18 December 1997 and 31 January 1998 and for all the loss caused to the applicant from 1 February to 25 March 1998. (28)
35.
The Court of First Instance therefore ordered the Commission to pay Fresh Marine one half of NOK 292 000 in respect of the applicant's loss of profit between 18 December 1997 and 31 January 1998 and NOK 285 000 (NOK 135 000 + NOK 150 000) as compensation for the damage caused from 1 February to 25 March 1998, that is a total amount of NOK 431 000. (29) The Court of First Instance dismissed the remainder of the application and divided the costs between the Commission and Fresh Marine in the ratio of 3:1.
IV ─ Forms of order sought and grounds of appeal
36.
On 29 December 2000, the Commission lodged an appeal against the judgment of the Court of First Instance. It requests that the Court of Justice should:
─
set aside the judgment, dismiss the application and order the respondent to pay the costs; or,
─
in the alternative, set aside the judgment and refer the case back to the Court of First Instance.
37.
Fresh Marine contends in its response to the appeal and its cross-appeal, that the Court of Justice should:
─
dismiss the appeal;
─
set aside the judgment in so far as it holds it to be co-liable;
─
order the Commission to pay NOK 577 000 (NOK 292 000 in respect of the period from 18 December 1997 to 31 January 1998, NOK 135 000 in respect of February 1998 and NOK 150 000 in respect of the period from 1 to 25 March 1998);
─
order the Commission to pay its costs both at first instance and on appeal;
─
order the Commission to pay interest on the sum of NOK 577 000 and the cost of proceedings at the annual rate of 8% from the date of the contested judgment.
V ─ First, second and third grounds of appeal
A ─
First ground of appeal: cause of the damage (causation)
38.
Under the first ground of appeal, the Commission submits that the damage was not, as the Court of First Instance held, caused by its allegedly unlawful conduct with respect to the examination of the October 1997 report.
1.
Arguments of the parties
39.
The Commission justifies its submission by claiming that the administrative act of analysing the October 1997 report could not have caused the damage but, rather, the entry into force of Regulation No 2529/97, which cancelled the undertaking and imposed anti-dumping duties. Every Commission regulation is preceded by administrative acts. However, since Regulation No 2529/97 is lawful, there is no unlawfulness, which is a requirement of Community liability. Since Fresh Marine itself takes the view that the damage took effect only upon the entry into force of that regulation, this ground of appeal should be allowed.
40.
In contrast, Fresh Marine claims that the damage was caused by the Commission's misconduct in relation to the October 1997 report. Regulation No 2529/97 is merely the result of the administrative acts. That it led to the damage taking effect does not mean that its adoption caused the damage. Fresh Marine observes that the Court of First Instance has already dismissed the Commission's submissions as to the legality of that regulation.
2.
Analysis
(a)
Admissibility
41.
First of all, the admissibility of the Commission's argument must be examined.
42.
In accordance with the case-law of the Court of Justice, it is clear
"from Article 168a of the Treaty [now Article 225 EC] and Article 51 of the EC Statute of the Court of Justice that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts"
. (30)
43.
Therefore, it is not for the Court of Justice, in determining an appeal, to consider a plea if
"the appellant's arguments are to be construed as an assertion that the Court of First Instance committed an error of law in finding that there was no sufficiently direct causal link between the damage alleged by it and the Commission's conduct"
. (31)
44.
In accordance with the case-law of the Court of Justice it is accepted
"that, in regard to a claim for compensation for damage, it is for the Court of First Instance alone, by virtue of Article 225 EC and Article 51 of the EC Statute of the Court of Justice, to assess the existence of the damage and the causal link between that damage and the facts giving rise to it, save where the clear sense of the evidence has been distorted"
. (32)
45.
On the other hand, it should be borne in mind that, in the case-law expressly based on
Brazzelli Lualdi
, (33) the Court of Justice draws a distinction between, on the one hand, the establishment and assessment of the facts, which cannot be reviewed, and, on the other, the defining of the legal nature of those facts and the determination of their legal consequences.
46.
Given that, in its first ground of appeal, the Commission contests the erroneous legal assessment of causation by the Court of First Instance, that is the legal definition of the Commission's conduct as the act giving rise to liability, and in view of the lack of clarity in the case-law, the arguments for admissibility of the first ground of appeal are more convincing.
47.
Moreover, the Court of Justice must consider whether the Court of First Instance erred in law when assessing the question of attribution of liability for the damage, including, for example, any contribution on the part of Fresh Marine to causing that damage. (34)
(b)
Merits
48.
The first ground of appeal essentially concerns a question of causation, or, to be more precise, the connection between the act and the breach of duty rather than that between the breach of duty and the damage. The facts established by the Court of First Instance and the arguments of the parties show that, in theory, two acts of the Commission may be regarded as circumstances giving rise to liability: the treatment of the report and the adoption of the regulation. The former is an administrative error and the latter a legislative error.
49.
While questions of attribution of liability generally concern cases in which the causal effect of the conduct of two different persons or institutions must be examined, in particular that of the party suffering damage or of third parties in addition to that of the party causing the damage, the present case involves just one party causing the damage, namely the Commission.
50.
Since the Court of Justice, in the case-law applicable until its judgment in
Bergaderm
, (35) developed different conditions for liability arising from administrative and legislative conduct, the Court of First Instance had to examine which of the two Commission acts in question caused the damage suffered by Fresh Marine.
51.
However, in order that both sets of conduct can be regarded, individually, as causal, it must be possible to separate the administrative conduct from the legislative measure subsequently adopted.
52.
The view that they can be separated is supported, firstly, by the fact that they did not coincide temporally and, secondly, by the fact that a different party acted
"as the Commission"
in each case. The report was dealt with by the competent Commission staff while the legislative measure was adopted by the Commission as a collegiate body.
53.
Against the argument that the prior administrative conduct and the subsequent legislative measure are separable is the fact that every legislative measure is preceded by administrative action. The legislative measure simply constitutes the result of that action. However, if the result is considered to consist not only in the legislative measure, the treatment of the report, including the omission to contact Fresh Marine, would itself constitute a completed act preceded by misconduct in the form of certain assumptions made by the staff concerned.
54.
In connection with a separate assessment of both sets of conduct, reference was frequently made in the proceedings to the
BASF
case. (36) However, as the Commission rightly submitted, that case was concerned with a different set of facts, namely a procedural defect in the adoption of a legislative measure. The case involved the decision-making process immediately preceding the adoption of a legislative measure and, essentially, concerned the relationship between the formation of intent by an institution and the form in which that intent is expressed.
55.
In contrast, the present case is not concerned with the relationship between the proposed and the adopted legislative measure but, rather, with the relationship between the two sets of conduct and the damage.
56.
In accordance with settled case-law, there is a causal link between conduct and damage if the damage is a
"sufficiently direct consequence" (37) of the conduct. That condition also applies to the assessment of the causal effect of the Commission's administrative conduct. In the present case, it must therefore be examined whether the damage, namely the loss of profit caused by the suspension of exports to the Community, was caused by the wrongful treatment of the report by the Commission.
57.
While the Court of First Instance, in paragraph 57 of the contested judgment, found that the damage had been caused by the alleged misconduct of the Commission when examining the report, it nevertheless limited the scope of that finding by stating in paragraph 58 of its judgment that
"the Commission's conduct caused the alleged damage only when, and because, it was confirmed by the adoption of provisional measures"
. If one disregards the questionable description of the regulation as
"confirmation"
, it is clear that, in the Court of First Instance's view, the damage was caused only once the duties had been imposed.
58.
Since it is undisputed that the damage consists in the loss of profit resulting from suspended exports to the Community, what must be established is the time from when the duties became due. According to the Court of First Instance, that is the period during which the duties applied (paragraph 119). However, the duties became applicable only upon and from the adoption of the regulation and not from the time when the administrative conduct of the Commission began.
59.
The damage was therefore directly caused by a legislative measure (38) since only once the regulation became applicable did the
"actual and certain losses" (39) ─ required by the case-law ─ arise.
60.
However, even if it is concluded that each of the two sets of Commission conduct, considered individually, could have caused the damage, it must, in accordance with the case-law of the Court of Justice, be considered whether the chain of causation was interrupted by the second cause. (40)
61.
The Court of First Instance proceeded on the basis that both sets of conduct were causal but did not explain the relationship between those two supposed causes. If both Commission acts were to be considered causal ─ which is not the case ─ the Court should have examined the impact of the second cause, that is the regulation, on the chain of causation which began with the first cause, namely the administrative conduct of the Commission. However, the Court of First Instance failed to consider the issue of interruptive causation and did not address the question whether the regulation should be regarded as a
"reserve cause"
.
62.
In accordance with the case-law of the Court of Justice, conduct is not causal if the damage would have arisen even in the absence of unlawful conduct. (41) That means that the Commission's handling of the report is not causal if, even in the absence of that conduct, Fresh Marine would have suspended exports and thus suffered a loss in profits. The fact that exports were suspended as a result of the entry into force of the regulation, that is to say irrespective of the administrative error, shows that, in the present case, the administrative error cannot have been causal within the meaning of the Court's case-law. The damage would have arisen in the absence of the report but not in the absence of the regulation. The fact that the regulation would not have been adopted without the administrative error is irrelevant in that regard.
63.
Consequently, the view taken by the Court of First Instance in paragraph 120 of the contested judgment that, had it not been for the errors
and
the customs duties which followed them, exports would have been continued is an error in law.
64.
On a close examination, it must be held that, contrary to the view of the Court of First Instance, it was not the Commission's unlawful conduct with respect to the report which led to the damage suffered but, rather, the adoption of the provisional duties. (42)
65.
The first ground of appeal is therefore well founded.
B ─
The second ground of appeal: Nature of legal infringement as a condition of liability
66.
By the second ground of appeal, the Commission challenges the Court of First Instance's finding that the case-law characterising anti-dumping measures as legislative acts involving choices of economic policy concerned cases
"radically different"
from the present case and that, therefore, a mere infringement of Community law would, in the present case, suffice to give rise to liability under Article 288 EC.
1.
Arguments of the parties
67.
In support of the second ground of appeal, the Commission argues that it is apparent from the wording of Article 8(10) of the Basic Regulation that, when imposing provisional measures, the Commission has a broad discretion in determining the circumstances leading it to conclude that an undertaking has been breached. By finding, in paragraph 57, that only very limited or, indeed, no discretion is conferred on the Commission, the Court of First Instance disregarded its own case-law. It was inconsistent with that case-law to regard the administrative conduct as the source of liability.
68.
Even if the damage was caused by the administrative conduct, liability would still depend on the question of the Commission's discretion. In the present case, only a sufficiently serious infringement could give rise to liability.
69.
Fresh Marine submits that the second ground of appeal is closely related to the first and the Court of First Instance was right to find that a mere infringement was sufficient to give rise to liability. Should the Court of Justice find that the Commission's conduct in analysing the October 1997 report caused the damage suffered, it must reject the second ground of appeal.
70.
Fresh Marine submits further that Regulation No 2529/97 has all the characteristics of a decision affecting it individually and is therefore not of a legislative (general or abstract) but, rather, an administrative nature.
71.
Moreover, the Commission's argument should be rejected on the following three grounds. Firstly, the imposition of provisional duties is merely the consequence of the finding that Fresh Marine had failed to comply with its undertaking. Secondly, the broad discretion relates only to the matter of whether or not to impose duties and does not permit maladministration or have any effect on the Commission's obligation to comply with the Basic Regulation. Thirdly, the cases cited by the Commission are irrelevant.
2.
Analysis
72.
The second ground of appeal is concerned with the question of the standard by reference to which the conduct of the Commission causing the damage must be assessed. In accordance with the analysis of the first ground of appeal, the following assessment is based on the conclusion that the imposition of provisional duties, that is to say the adoption of the regulation, was the decisive cause of the damage.
73.
In accordance with the case-law of the Court of Justice changed by the judgment in
Bergaderm
, (43) it is no longer relevant whether the imposition of provisional duties is to be regarded as a legislative or administrative measure, that is to say whether it is of a general or individual nature.
74.
In accordance with the current case-law, the important question is now whether or not
"the institution in question has only considerably reduced, or even no, discretion"
. If so,
"the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach"
. (44)
75.
The Court of Justice has not yet had to address the question whether the Commission's discretion is considerably reduced under Article 8(10) of the Basic Regulation, which is the relevant provision here. It is therefore appropriate, first of all, to consider the case-law of both the Court of Justice and the Court of First Instance as regards discretion in anti-dumping law.
76.
None of the cases in which the Court of First Instance or the Court of Justice has held that there is broad discretion can be compared to the provision of the Basic Regulation relevant in this case. (45) Those cases concerned essentially the assessment of the interests of the Community, (46) the determination of the period to be taken into account for the purposes of determining injury, (47) the determination of the type of duty (48) and the establishment of the period of application of definitive anti-dumping duties. (49)
77.
Not even the judgment in
Miwon
, (50) which was frequently referred to in the present proceedings, establishes that the Community institutions generally have a broad discretion. Indeed, such discretion is established only in respect of the following: whether the relevant economic sector of the Community has suffered significant prejudice and whether that damage was caused by dumped exports and whether imports from other countries contributed to the prejudice suffered by that economic sector of the Community.
78.
The argument that the Community institutions always have a broad discretion in anti-dumping matters is based on an impermissible generalisation of the judgments of the Community judicature, which each concerned specific individual provisions and, in the majority of cases, dealt with the competence of the Council and not that of the Commission. It is even less possible to base a general statement as regards the conditions for liability on the case-law concerned essentially with the conditions for bringing an action.
79.
In any event, there is no case-law relevant to Article 8(10) of the Basic Regulation, which is the applicable provision in the present case. However, even if it should be found that that provision confers discretion on the Commission, that does not necessarily mean that the strict condition for liability will apply, as it did under the traditional case-law. The less stringent condition of a
"mere infringement of Community law"
requires only
"considerably reduced discretion"
.
80.
It must therefore be examined below whether the Commission, in applying Article 8(10) of the Basic Regulation, has such reduced discretion. For that purpose, it is necessary to compare that provision with the former provision, namely Article 10(6) of Council Regulation (EC) No 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community (51) and the provision preceding it, Article 10(6) of Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community. (52) That comparison shows that the words
"on the basis of the best information available"
have been inserted into the provision applicable to the present case. The Commission's discretion with respect to the condition for the imposition of provisional duties has thus clearly been limited.
81.
In the present case, it must also be taken into consideration that, according to the Court of First Instance, the Commission did not exercise the required diligence in relation to the information available to it. It should not have imposed duties on the basis of the information available to it but, rather, improved that information. In accordance with the case-law of both the Court of Justice (53) and the Court of First Instance, (54) the Commission is especially obliged to carry out investigations in anti-dumping cases.
82.
In view of the special circumstances of the present case, it should, in my opinion, be held that the Commission had only
"considerably reduced discretion"
within the meaning of the
Bergaderm
judgment.
83.
The second ground of appeal is therefore unfounded.
C ─
The third ground of appeal: Conduct of the Commission in connection with the October 1997 report
84.
By the third ground of appeal, the Commission submits that the Court of First Instance erred in law to the extent that it held that the October 1997 report prima facie justified the conclusion that Fresh Marine had complied with its undertaking and therefore concluded that the Commission's reaction in amending the report was disproportionate and that the Commission committed an error which an administrative authority exercising ordinary care and diligence would not have committed.
1.
Arguments of the parties
85.
The Commission submits, first of all, that a company which has made sales below the minimum price can always, by inserting negative figures, alter its entries so as to produce an end result which shows that it has complied with its undertaking. It follows that the final entries cannot be examined in isolation. Since the October 1997 report cannot therefore be used as proof of compliance with the undertaking, the Court of First Instance erred in law in finding that the amendment of the report was disproportionate. Paragraphs 82 and 91 of the contested judgment contained assumptions that were legally incorrect.
86.
The Court of First Instance committed a further error in law by not considering the conditions in Article 8(10) of the Basic Regulation. The fact that the Commission accepts an undertaking does not mean that it must blindly trust the exporter's statements. Moreover, Article 8(10) does not grant the exporter a right to be heard.
87.
Furthermore, the Court of First Instance should have determined which party was to bear the burden of proof as to compliance with the undertaking. It was not for the Commission to prove that the undertaking was breached but for the exporter to prove that it was complied with.
88.
Fresh Marine contends that the Commission's argument concerning the Court of First Instance's analysis of the final entries is inadmissible as it concerns points of fact.
89.
In the alternative, Fresh Marine submits that the Court of First Instance did not treat the final entries as having independent validity. In paragraph 76 of the contested judgment, it established a link between the lines in the report and the final entries.
90.
The Court of First Instance was right to conclude that the Commission did not exercise the necessary diligence when assessing the final entries and therefore did not have the information required by Article 8(10) of the Basic Regulation.
91.
Even if it were correct that the final entries could not be regarded as showing that Fresh Marine had complied with its undertaking, the fact remained that the Commission amended the undertaking without informing Fresh Marine and giving it the opportunity to be heard.
92.
The discretion to accept or reject an undertaking, conferred on the Commission pursuant to Article 8(3) of the Basic Regulation, cannot be interpreted as permitting unilateral changes to a report and the conclusion on that basis that the undertaking was breached.
93.
Finally, Fresh Marine submits that the Commission never requested it to prove its compliance with the undertaking prior to the adoption of the provisional duties. Fresh Marine could not therefore have been aware that the October 1997 report might lead the Commission to conclude that the undertaking had been breached.
2.
Analysis
94.
Given the view taken here that the adoption of provisional duties and not the Commission's administrative conduct, that is its handling of the October 1997 report, was the causal event, it is unnecessary to consider the Commission's third ground of appeal, which concerns the Court of First Instance's assessment of its administrative conduct. Thus, the question raised by Fresh Marine as to the admissibility of the Commission's submission also need not be addressed.
VI ─ Interim result: Substitution of the grounds
95.
As was shown in the analysis of the first ground of appeal, it was, contrary to the view of the Court of First Instance, not the unlawful conduct of the Commission with respect to the October 1997 report which caused the damage but, rather, the adoption of the provisional duties. (55) Accordingly, the Court of First Instance's interpretation of the requirement of causation for the establishment of non-contractual liability of the Community must be regarded as an error in law.
96.
However, the error in law committed by the Court of First Instance does not lead to the judgment being set aside if the operative part of the judgment is well founded on other legal grounds. In accordance with the case-law of the Court of Justice, (56) an appeal must be dismissed where the grounds of the Court of First Instance's judgment constitute an infringement of Community law but the operative part of the judgment is nevertheless well founded on other grounds.
97.
That applies to the conclusion reached in connection with the assessment of the second ground of appeal. There it was found sufficient for the establishment of liability that the Commission committed a mere infringement of Community law when adopting Regulation No 2529/97 imposing provisional duties. (57)
98.
As is shown by the Court of First Instance's findings in respect of the administrative error made by the Commission, which are ─ in that regard ─ free of any error in law, in particular paragraph 91 of the contested judgment, the October 1997 report justified the conclusion that Fresh Marine had complied with its undertaking.
99.
However, Article 8(10) of the Basic Regulation makes the imposition of provisional duties subject to the condition that there is
"reason to believe that an undertaking is being breached"
.
100.
Moreover, the Commission did not reach its decision
"on the basis of the best information available"
within the meaning of Article 8(10) of the Basic Regulation. The very doubts with regard to the October 1997 report, admitted to by the Commission, together with the possibility, conceded by the Commission at the hearing, of clarifying those doubtful points by contacting Fresh Marine, show that the report alone cannot be regarded as the best information available.
101.
By imposing provisional duties despite the fact that not
all
of the requirements laid down in Article 8(10) of the Basic Regulation were satisfied, the Commission erred in law. That constitutes a
"mere infringement"
, which is one of the conditions for non-contractual liability of the Community in the case of considerably reduced discretion.
VII ─ The fourth and fifth grounds of appeal
A ─
The fourth ground of appeal: mitigation of loss
102.
By the fourth ground of appeal, the Commission challenges the Court of First Instance's judgment in so far as it held that Fresh Marine exercised reasonable diligence in mitigating the damage allegedly suffered by it.
1.
Arguments of the parties
103.
The Commission submits that the Court of First Instance failed to have regard to the burden of proof laid down in Article 8(10) of the Basic Regulation since any exporter must expect the imposition of duties if the report suggests that it has breached its undertaking. The Commission also had
"better"
information showing that the undertaking had been breached.
104.
Moreover, the Commission criticises the Court of First Instance's finding that, despite the failure to obtain a bank guarantee, Fresh Marine was not in breach of its duty to mitigate its loss.
105.
According to the Commission, the finding in paragraph 124 of the contested judgment that, if Fresh Marine had continued to export, it would have run the risk of having to bear the duties on its own should they have been collected definitively contradicts other parts of the judgment. Even if the conduct giving rise to liability was the unilateral amendment of the report, the Court of First Instance does not explain how it was able to conclude that the provisional duties might have become definitive. Fresh Marine knew that it could have explained the information contained in the report and that, pursuant to Article 10(3) of the Basic Regulation, the provisional duties would not then have been confirmed.
106.
According to Fresh Marine, the Commission's fourth ground of appeal is concerned solely with points of fact and is therefore inadmissible. Alternatively, it submits that the Commission must explain why it considered it necessary to impose provisional duties if it regarded it as obvious that they would not be collected definitively. Secondly, it overlooks the fact that collection of duties is a matter for the Council. Thirdly, the Commission also disregards the fact that, even if Fresh Marine had explained the negative entries, the Council would nevertheless have collected the duties. The Commission also declined to give any assurance that the duties would not be collected.
2.
Analysis
(a)
Admissibility
107.
First of all, it is necessary to consider Fresh Marine's objection that the fourth ground of appeal concerns points of fact and is therefore inadmissible.
108.
As can be seen from the Commission's arguments, the fourth ground of appeal is essentially a criticism of the Court of First Instance's legal assessment of the duty to mitigate loss. That relates to the question of the burden of proof under Article 8(10) of the Basic Regulation and is therefore a point of law.
109.
However, with regard to the Commission's arguments as to the grounds given in paragraph 124 of the contested judgment, it must be found that they relate to the assessment of the risk run by Fresh Marine that the duties would be definitively collected if it continued to export to the Community after the imposition of those duties. Thus, they essentially challenge the Court of First Instance's assessment of the facts and the ground of appeal is therefore inadmissible in that respect.
(b)
Merits
110.
First of all, the Commission's argument as to the burden of proof under Article 8(10) of the Basic Regulation must be considered. That provision governs the conditions under which a provisional duty may be imposed. Any matters of proof in connection with Article 8(10) of the Basic Regulation can relate only to those conditions.
111.
It can be inferred from Article 8(10) of the Basic Regulation only that the Commission must demonstrate that the conditions for the imposition of duties are satisfied. However, the Commission addresses the question of proof in connection with the duty to mitigate loss. The provision cited by the Commission does not, however, contain any provisions concerning that duty.
112.
The procedural principle that the claimant bears the burden of proof also applies to mitigation of loss. If the Commission now complains of an error in law on the part of the Court of First Instance over the question of the mitigation of loss, it is for the Commission as the party causing the damage to show that the party suffering damage, that is Fresh Marine, failed in its duty to mitigate its loss. However, the Commission has not succeeded in doing so.
113.
In holding in paragraph 124 of its judgment that it would have been unreasonable to expect Fresh Marine to continue exports to the Community, the Court of First Instance applied a criterion, namely reasonableness, which, in view of the legal systems of the Member States, must be regarded as admissible. Accordingly, the Court of First Instance, in any event, did not err in law in that regard.
114.
However, an appraisal of reasonableness for the person suffering the damage, that is to say, essentially, of the economic risk, is an assessment of facts which falls outside the jurisdiction of the Court of Justice in appeal proceedings. The Court of Justice cannot therefore examine whether the Court of First Instance erred in assessing the economically relevant facts, in particular with respect to the bank guarantee.
115.
The fourth ground of appeal must therefore be rejected.
B ─
Fifth ground of appeal: infringement of the rights of the defence
116.
By the fifth ground of appeal, the Commission alleges infringement of the rights of the defence.
1.
Arguments of the parties
117.
The Commission submits that the Court of First Instance did not offer it the opportunity to explain why, for no obvious reason, it delayed until 25 March 1998 before giving Fresh Marine formal legal assurance even though it had become convinced at least from 30 January 1998 that Fresh Marine had complied with its undertaking. The Court of First Instance erred in law in concluding that the Commission was fully liable for the loss of profit suffered from the end of January 1998.
118.
The Commission disputes that it misinterpreted the findings of the Court of First Instance and submits that it could not, by simple letter, give any formal legal assurance that the provisional duties would not be collected and the undertaking reinstated.
119.
According to Fresh Marine, the Commission has misinterpreted the Court of First
Instance's findings. Contrary to what the Commission claims, the Court of First Instance did not find that the Commission should have adopted and published Regulation No 651/98. The Court of First Instance merely reproached the Commission for not providing Fresh Marine with formal assurance at the end of January 1998, without holding that a regulation was necessary for that purpose. Rather than providing Fresh Marine with formal assurance, the Commission, by its letter of 2 February, perpetuated the doubts surrounding the duties.
2.
Analysis
120.
First of all, it should be noted that, in its appeal, under the heading
"Rights of the Defence"
, the Commission addresses a series of matters which really concern the interpretation of the Basic Regulation, in particular the assessment of Regulation No 651/98 and the letter of 2 February 1998 and ─ generally ─ the legal significance of mere letters.
121.
Although the question whether the legal assurance can be provided only by way of a regulation is, in principle, one which can be considered in appeal proceedings, the Commission complains ─ at least in its appeal ─ of the lack of a legal hearing in respect of liability for a certain period, in particular the delay
"for no obvious reason"
established by the Court of First Instance. Considered from that point of view, the Commission in its appeal alleges merely infringement of procedural rights and not erroneous assessment of liability by the Court of First Instance. Essentially, the alleged infringement of the rights of the defence relates to the delayed reinstatement of the undertaking.
122.
During the proceedings before the Court of First Instance and in the written and oral proceedings, the Commission had several opportunities to comment on what it calls the
"issue"
, that is the legal significance of dates and periods, and on the impending division of responsibility for the loss. The same applies to the legal significance of mere letters.
123.
In arguing that the Court of First Instance did not give it the opportunity to submit its views on the questions of liability it refers to, the Commission fails to consider the nature of actions for damages. In such proceedings, the party causing the damage must at all times reckon with a division of responsibility for the damage. The Commission was aware of the circumstances which led the Court of First Instance to divide the loss by reference to periods and in accordance with a certain percentage. It therefore had the opportunity to comment on the circumstances relevant to that decision.
124.
However, the rights of the defence do not require the Court of First Instance to give the Commission an opportunity to comment on the conclusions which it will draw, or has already drawn, from those circumstances.
125.
In arguing in its appeal that the contested judgment imposes a penalty on it, the Commission fails to consider the legal nature of penalties in Community law. Even if one takes the view that
"punitive damages"
are known to the Community law on damages, the amount of damages alone shows that such compensation cannot be regarded as punitive.
126.
The conditions relevant to the exercise of the rights of the defence result from Article 6 of the European Convention on Human Rights and the case-law of the European Court of Human Rights (Eur. Court HR) relating to that article. (58)
127.
The requirements of a fair trial comprise, above all, contradictory proceedings and equality of arms of the parties. In accordance with those principles, a party to a criminal or civil trial must have an opportunity to have knowledge of and comment on all evidence adduced or observations filed and must, in addition, be able to present his case under conditions that do not place him at a substantial disadvantage
vis-à-vis
his opponent. (59) The decisive point in that regard is whether the party to the proceedings is able to defend himself effectively in the circumstances of the case. (60)
128.
If that test is applied to the proceedings before the Court of First Instance, it is clear that the Commission's rights of defence were respected since it had sufficient opportunity to comment on the issue raised by it.
129.
Accordingly, the fifth ground of appeal is unfounded and, therefore, the appeal must be dismissed in its entirety.
VIII ─ The cross-appeal and the claim for interest
1.
Arguments of the parties
130.
In its cross-appeal, Fresh Marine submits that the Court of First Instance erred in law in paragraphs 91 and 92 of the contested judgment by holding that Fresh Marine was as guilty of serious irregular conduct as the Commission and that it was responsible for the damage it suffered between 18 December 1997 and 31 January 1988 because it failed to append to the October 1997 report, of its own accord, explanations of the negative entries. By finding that the Commission had acted wrongfully but failing to draw the appropriate conclusion therefrom, the Court of First Instance erred in law.
131.
In support of that submission, Fresh Marine claims that the failure to append explanations did not cause the damage. Rather, the Commission's staff, which unilaterally amended the report by deleting certain entries and failed to comply with its obligation under Article 18(4) of the Basic Regulation to inform Fresh Marine thereof, was solely responsible for the damage.
132.
The Commission submits that Article 18(4) of the Basic Regulation is inapplicable since the Commission did not reject the October 1997 report. In that regard, the cross-appeal is inadmissible since no reference was made to that provision in either the proceedings before the Court of First Instance or the contested judgment.
133.
Further, the Commission takes the view that Fresh Marine bases its submissions on inadmissible factual premisses since the Court of First Instance held in paragraph 89 that the entries were ambiguous and found in paragraph 91 that Fresh Marine's conduct could have caused
"confusion"
. However, the Court of First Instance neither concluded that the Commission was obliged to provide information nor found any infringement of the Basic Regulation.
134.
Moreover, the Commission regards the claim for interest as inadmissible because Fresh Marine does not complain that the Court of First Instance erred in law in that regard. Alternatively, the Commission claims that at least the costs of the proceedings should be excluded.
2.
Analysis of the cross-appeal
(a)
Admissibility
135.
With respect to the Commission's objection that Fresh Marine's argument relating to Article 18(4) of the Basic Regulation is inadmissible, it should be noted that the fact that the Court of First Instance did not cite that provision in the contested judgment does not result in inadmissibility. By that argument, Fresh Marine is clearly complaining of precisely that failure by the Court of First Instance to apply the provision and is thus alleging an error in law.
(b)
Merits
136.
On the other hand, the Commission is right to claim that Article 18(4) of the Basic Regulation is inapplicable to the present case because that provision is concerned with other aspects of anti-dumping proceedings.
137.
It need not therefore be examined in the present appeal proceedings whether the Commission failed to comply with its obligation under Article 18(4) of the Basic Regulation.
138.
Essentially, Fresh Marine is complaining of the Court of First Instance's analysis of the causal link between its conduct and the damage. In that regard, it should be noted that Fresh Marine does not dispute the Court of First Instance's finding that no explanations were appended to the October 1997 report.
139.
The Court of First Instance's conclusion, based on the finding that both parties were
"equally at fault"
, that responsibility for the damage should be shared is only consistent with the principle recognised in the case-law of the Court of Justice that responsibility is to be shared in the event of contributory fault. In accordance with that principle, the Community can be obliged to compensate the damage suffered by an enterprise but the extent of liability of, for example, the Commission can be limited as a result of the conduct of the enterprise suffering the damage. If the party suffering damage contributed to that damage, which the Court of First Instance rightly found in the present case, the Community judicature ─ in this case the Court of Justice ─ can order that both parties, namely the Commission and Fresh Marine, should each bear a certain proportion of the damage. (61)
140.
The present case concerns contributory fault in the form of shared responsibility for the damage and not in the form of a failure to mitigate the damage.
141.
Since the damage suffered by Fresh Marine cannot be attributed entirely to the Commission's conduct, the Court of First Instance's decision to divide the loss and quantify the contributory fault is not, in principle, an error in law. A 50:50 division cannot be contested if that ratio is consistent with the respective circumstances, in particular the contribution to causation.
142.
Fresh Marine has not put forward any arguments which invalidate the finding of the Court of First Instance that Fresh Marine's conduct constituted as serious an irregularity as the wrongful conduct of the Commission. The claim in the cross-appeal regarding that point must therefore be rejected.
3.
Analysis of the claim for interest
143.
Fresh Marine also claims that the Commission should be ordered to pay interest on the sum of NOK 577 000 and the costs of the proceedings at an annual rate of 8% from the date of the contested judgment.
144.
A claim for payment of interest, which likewise concerns the non-contractual liability of the Community under Article 288(2), is, in accordance with the case-law of the Court of Justice, (62) admissible in principle. That is consistent with the principle that
"full restitution is to be made for the damage suffered"
. (63)
145.
However, as the Commission has submitted, the claim for interest is inadmissible because it does not satisfy the requirements of Article 112(1)(c) of the Rules of Procedure of the Court of Justice, pursuant to which it must be stated which provisions or principles of Community law are alleged to have been infringed by the Court of First Instance. (64)
146.
Whilst a loss caused by the fall in the value of money can, in accordance with the case-law of the Court of Justice, (65) be compensated, Fresh Marine's application contains no arguments in that regard.
147.
It follows that the cross-appeal and the claim for interest must be dismissed.
IX ─
Costs
148.
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 asked for in the successful party's pleadings. Since the Commission has been unsuccessful in all its pleas and Fresh Marine has been unsuccessful in its cross-appeal, both parties must be ordered to pay their own costs.
X ─ Conclusion
149.
Accordingly, I propose that the Court should:
─
dismiss the appeal and the cross-appeal; and
─
order the Commission and Fresh Marine to bear their own costs.
(1) .
(2)
Case T-178/98
Fresh Marine Company
v
Commission
[2000] ECR II-3331.
(3)
Commission Regulation (EC) No 2529/97 (OJ 1997 L 346, p. 63).
(4)
OJ 1996 L 56, p. 1.
(5)
See Case T-178/98 (cited at footnote 2), paragraphs 1 to 21.
(6)
OJ 1996 C 253, pp. 18 and 20.
(7)
OJ 1994 L 349, p. 22.
(8)
Decision 97/634/EC of 26 September 1997 accepting undertakings offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of farmed Atlantic salmon originating in Norway (OJ 1997 L 267, p. 81).
(9)
Regulation (EC) No 1890/97 of 26 September 1997 imposing a definitive anti-dumping duty on imports of farmed Atlantic salmon originating in Norway (OJ 1997 L 267, p. 1).
(10)
Council Regulation (EC) No 1891/97 of 26 September 1997 imposing a definitive countervailing duty on imports of farmed Atlantic salmon originating in Norway (OJ 1997 L 267, p. 19).
(11)
See footnote 8.
(12)
Regulation (EC) No 651/98 amending Regulations Nos 1890/97, 1891/97 and 2529/97 and Decision 97/634 (OJ 1998 L 88, p. 31).
(13)
Case T-178/98 (cited at footnote 2), paragraphs 57 and 58.
(14)
Case C-352/98 P
Bergaderm and Goupil
v
Commission
[2000] ECR I-5291, paragraph 44.
(15)
See Case T-178/98 (cited at footnote 2), paragraphs 61 and 62.
(16)
See Case T-178/98 (cited at footnote 2), paragraphs 73 and 74.
(17)
See Case T-178/98 (cited at footnote 2), paragraphs 75 and 76.
(18)
See Case T-178/98 (cited at footnote 2), paragraphs 79 and 80.
(19)
See Case T-178/98 (cited at footnote 2), paragraphs 81 and 82.
(20)
See Case T-178/98 (cited at footnote 2), paragraphs 84 and 89.
(21)
See Case T-178/98 (cited at footnote 2), paragraph 91.
(22)
See Case T-178/98 (cited at footnote 2), paragraph 106.
(23)
See Case T-178/98 (cited at footnote 2), paragraphs 109, 110 and 115.
(24)
See Case T-178/98 (cited at footnote 2), paragraphs 117 and 118.
(25)
See Case T-178/98 (cited at footnote 2), paragraphs 119 and 120.
(26)
See Case T-178/98 (cited at footnote 2), paragraph 121.
(27)
See Case T-178/98 (cited at footnote 2), paragraphs 124 and 125.
(28)
See Case T-178/98 (cited at footnote 2), paragraphs 135 and 136.
(29)
See Case T-178/98 (cited at footnote 2), paragraph 137.
(30)
Case C-13/99 P
Team
v
Commission
[2000] ECR I-4671, paragraph 63.
(31)
Case C-13/99 P (cited at footnote 30), paragraph 66.
(32)
Case C-62/01 P
Campogrande
v
Commission
[2002] ECR I-3793, paragraph 24, and Case C-362/95 P
Blackspur DIY and Others
v
Council and Commission
[1997] ECR I-4775, paragraphs 28 and 29.
(33)
Case C-136/92 P
Commission
v
Brazzelli Lualdi and Others
[1994] ECR I-1981, paragraph 49, and Case C-284/98 P
Parliament
v
Bieber
[2000] ECR I-1527, paragraph 31.
(34)
Case C-284/98 P (cited at footnote 33), paragraph 52 et seq.
(35)
Case C-284/98 P (cited at footnote 33), paragraph 52 et seq.
(36)
Case C-137/92 P
Commission
v
BASF and Others
[1994] ECR I-2555, paragraph 67.
(37)
See,
inter alia
, Joined Cases 64/76 and 113/76, 167/78 and 239/78, 27/79, 28/79 and 45/79
Dumortier Frères and Others
v
Council
[1979] ECR 3091, paragraph 21.
(38)
With respect to a similar set of facts, see Case T-20/94
Hartmann
v
Council and Commission
[1997] ECR II-595, paragraph 108.
(39)
Joined Cases 67/75 to 85/75
Lesieur
v
Commission
[1976] ECR 391, paragraphs 22 and 23.
(40)
Toth, A.G.,
"The Concepts of Damage and Causality as Elements of Non-contractual liability"
in Heukels, Ton/McDonnell, Alison,
The Action for Damages in Community Law
, 1997, p. 179 (193).
(41)
Joined Cases 29/63, 31/63, 36/63, 39/63 to 47/63, 50/63 and 51/63
Laminoirs de la Providence and Others
v
High Authority
[1965] ECR 911 and Joined Cases 5/66, 7/66 and 13/66 to 24/66
Kampffmeyer and Others
v
Commission
[1967] ECR 245.
(42)
With respect to a similar situation, see the Opinion of Advocate General Tesauro in Case 121/86
Epicheiriseon Metalleftikon Viomichanikon kai Naftiliakon and Others
v
Council
[1989] ECR 3919, paragraph 21.
(43)
Case C-352/98 P (cited at footnote 14), paragraph 46.
(44)
Case C-352/98 P (cited at footnote 14), paragraph 44.
(45)
See also in that regard the list in Müller/Khan/Neumann,
EC Anti-Dumping Law
, 26.40.
(46)
Case C-156/87
Gestetner Holdings
v
Council and Commission
[1990] ECR I-781, paragraph 63.
(47)
Case C-458/98 P
Industrie des poudres sphériques
v
Council
[2000] ECR I-8147, paragraph 89, and Case C-69/89
Nakajima All Precision
Co.
v
Council
[1991] ECR I-2069, paragraph 86.
(48)
Case C-189/88
Cartorobica
[1990] ECR I-1269, paragraph 25.
(49)
Case T-232/95
Cecom
v
Council
[1998] ECR II-2679, paragraph 46.
(50)
Case T-51/96
Miwon Co.
v
Council
[2000] ECR II-1841, paragraph 94.
(51)
OJ 1994 L 349, p. 1.
(52)
OJ 1988 L 209, p. 1.
(53)
Case T-48/96
Acme Industry Co.
v
Council
[1999] ECR II-3089, paragraph 41.
(54)
Case C-216/91
Rima Eletrometalurgia
v
Council
[1993] ECR I-6303, paragraphs 15 and 19.
(55)
With respect to a similar situation, see the Opinion of Advocate General Tesauro in Case 121/86 (cited at footnote 42), paragraph 21.
(56)
Case C-30/91 P
Lestelle
v
Commission
[1992] ECR I-3755, paragraph 28, Case C-36/92 P
SEP
v
Commission
[1994] ECR I-1911, paragraph 33, and Case C-294/95 P
Ojha
v
Commission
[1996] ECR I-5863, paragraph 52.
(57)
See Case C-352/98 P (cited at footnote 14), paragraph 45.
(58)
See,
inter alia
, Eur. Court HR, Schenk v Switzerland judgment of 12 July 1988, Series A no. 140, §§ 45 - 46, and Mantovanelli v France judgment of 18 March 1977,
Reports of Judgments and Decisions
1997-11, § 34.
(59)
See e.g. Eur. Court HR, Vermeulen v Belgium judgment of 20 February 1996,
Reports of Judgments and Decisions
1996-I, § 33, Nideröst-Huber v Switzerland judgment of 18 February 1997,
Reports of Judgments and Decisions
1997-I, § 23, and
Morel
v
France
judgment of 6 June 2000,
Reports of Judgments and Decisions
2000-VI, § 27.
(60)
See e.g. Schenk v Switzerland judgment of 12 July 1988 (cited at footnote 58), § 46.
(61)
Case 145/83
Adams
v
Commission
[1985] ECR 3539, paragraph 53 et seq.
(62)
Case C-152/88
Sofrimport
v
Commission
[1990] ECR I-2477, paragraph 32, and judgment of 19 May 1992 in Joined Cases C-104/89 and C-37/90
Mulder and Others
v
Council and Commission
[1992] ECR I-3061, paragraph 35.
(63)
Judgment of 27 January 2000 in Joined Cases C-104/89 and C-37/90
Mulder and Others
v
Commission
[2000] ECR I-203, paragraph 216.
(64)
Case C-282/98 P
Enso Española
v
Commission
[2000] ECR I-9817, paragraph 62.
(65)
Joined Cases C-104/89 and C-37/90 (cited at footnote 63), paragraph 351.