62001CJ0122_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-122/01 P,
T. Port GmbH
& Co. KG,
established in Hamburg (Germany), represented by G. Meier, Rechtsanwalt,
appellant,
APPEAL against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 1 February 2001 in Case T-1/99
T. Port
v
Commission
[2001] ECR II-465, seeking to have that judgment set aside in part,
the other party to the proceedings being:
Commission of the European Communities,
represented by K.-D. Borchardt and M. Niejahr, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of:
J.-P. Puissochet, President of the Chamber,
R. Schintgen (Rapporteur),
V. Skouris,
F. Macken and
N. Colneric, Judges,
Advocate General: P. Léger,
Registrar: M.-F. Contet, Principal Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 4 July 2002,
after hearing the Opinion of the Advocate General at the sitting on 24 October 2002,
gives the following
Judgment
Grounds
1.
By application lodged at the Registry of the Court of Justice on 19 March 2001, T. Port GmbH
& Co. KG ( "T. Port"
) brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 1 February 2001 in Case T-1/99
T. Port
v
Commission
[2001] ECR II-465 ( "the contested judgment"
), seeking to have that judgment set aside in part.
Relevant provisions
2.
In the contested judgment, the Court of First Instance set out the relevant provisions as follows:
"1.
Title IV of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1) replaced the various national systems with a common system of trade with third countries.
2.
Under the first paragraph of Article 17 of Regulation No 404/93:
"Any importation of bananas into the Community shall be subject to the submission of an import licence issued by the Member States at the request of any party concerned, irrespective of his place of establishment within the Community, without prejudice to the special provisions made for the implementation of Articles 18 and 19."
3.
Article 18(1) of the original version of Regulation No 404/93 provided for a tariff quota of two million tonnes (net weight) to be opened each year for imports of third-country bananas from non-ACP States ( "third-country bananas"
) and non-traditional imports of bananas from ACP States ( "non-traditional ACP bananas"
).
Under that quota, imports of third-country bananas were subject to a levy of ECU 100 per tonne and non-traditional ACP bananas to a zero duty.
4.
Article 19(1) of Regulation No 404/93 subdivided the tariff quota opened as follows: 66.5% to the category of operators who had marketed third-country and/or non-traditional ACP bananas (category A), 30% to the category of operators who had marketed Community and/or traditional ACP bananas (category B) and 3.5% to the category of operators established in the Community who had started marketing bananas other than Community and/or traditional ACP bananas from 1992 (category C).
5.
Article 20 of Regulation No 404/93 made the Commission responsible for adopting detailed rules for the implementation of Title IV.
6.
The Commission accordingly adopted Regulation (EEC) No 1442/93 of 10 June 1993 laying down detailed rules for the application of the arrangements for importing bananas into the Community (OJ 1993 L 142, p. 6).
7.
On 19 February 1993 the Republic of Colombia, the Republic of Costa Rica, the Republic of Guatemala, the Republic of Nicaragua and the Republic of Venezuela requested the Commission to open consultations under Article XXII:1 of the General Agreement on Tariffs and Trade ( "GATT"
) in relation to Regulation No 404/93.
The consultations were unsuccessful and therefore in April 1993 those States initiated the dispute-settlement procedure provided for in Article XXIII:2 of the GATT.
8.
On 18 January 1994 the panel set up under that procedure submitted a report concluding that the import system introduced by Regulation No 404/93 was incompatible with the GATT rules.
The report was not adopted by the parties to the GATT.
9.
On 28 and 29 March 1994 the Community reached an agreement with the Republics of Colombia, Costa Rica, Nicaragua and Venezuela, known as the Framework Agreement on Bananas ( "the Framework Agreement"
).
10.
Point 1 of the second part of the Framework Agreement sets the basic overall tariff quota at 2 100 000 tonnes for 1994 and at 2 200 000 tonnes for 1995 and subsequent years, without prejudice to any increase due to enlargement of the Community.
11.
Point 2 lays down the percentages of that quota allocated to Colombia, Costa Rica, Nicaragua and Venezuela respectively.
Those States receive 49.4% of the total quota, while the Dominican Republic and the other ACP States are granted 90 000 tonnes for non-traditional imports, the balance being allocated to other third countries.
12.
Point 6 provides in particular:
"The supplying countries with country quotas may deliver special export certificates for up to 70% of their quota, which, in turn, constitute a prerequisite for the issuance, by the Community, of certificates for the importation of bananas from said countries by Category A and Category C operators.
Authorisation to deliver the special export certificates shall be granted by the Commission in order to make it possible to improve regular and stable trade relations between producers and importers and on the condition that the export certificates will be issued without any discrimination among the operators.
"
13.
Point 7 fixes the in-quota customs duty at ECU 75 per tonne.
14.
Points 10 and 11 provide:
"This agreement will be incorporated into the Community's Uruguay Round Schedule.
This agreement represents a settlement of the dispute between Colombia, Costa Rica, Venezuela and Nicaragua and the Community on the Community's banana regime.
The parties to this agreement will not pursue the adoption of the GATT panel report on this issue.
"
15.
Points 1 and 7 of the Framework Agreement were incorporated in Schedule LXXX to GATT 1994, which lists the Community customs concessions. GATT 1994 in turn constitutes Annex 1A to the Agreement establishing the Word Trade Organisation ( "the WTO"
).
An annex to Schedule LXXX reproduces the Framework Agreement.
16.
On 22 December 1994 the Council unanimously adopted Decision 94/800/EC concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).
17.
In accordance with Article 1(1) of that decision, the Agreement establishing the WTO and also the Agreements in Annexes 1, 2 and 3 to that Agreement, of which the 1994 GATT is one, have been approved on behalf of the European Community with regard to that portion of them which falls within the competence of the Community.
18.
On 22 December 1994 the Council adopted Regulation (EC) No 3290/94 on the adjustments and transitional arrangements required in the agriculture sector in order to implement the agreements concluded during the Uruguay Round of multilateral trade negotiations (OJ 1994 L 349, p. 105).
The regulation includes Annex XV relating to bananas, which provides that Article 18(1) of Regulation No 404/93 is to be amended so that, for 1994, the tariff quota is fixed at 2 100 000 tonnes and, for the following years, at 2 200 000 tonnes.
In the framework of that tariff quota, imports of third-country bananas are to be subject to a customs duty of ECU 75 per tonne.
19.
On 1 March 1995 the Commission adopted Regulation (EC) No 478/95 on additional rules for the application of Regulation No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending Regulation No 1442/93 (OJ 1993 L 49, p. 13). Regulation No 478/95 lays down the measures necessary for implementation, no longer on a transitional basis, of the Framework Agreement.
20.
Article 1(1) of Regulation No 478/95 provides:
"The tariff quota for imports of bananas from third countries and non-traditional ACP bananas referred to in Articles 18 and 19 of Regulation (EEC) No 404/93 shall be divided into specific shares allocated to the countries or groups of countries referred to in Annex I ..."
21.
Annex I contains three tables: the first sets out the percentages of tariff quota reserved to the Latin American States in the Framework Agreement; the second divides the quota of 90 000 tonnes of non-traditional ACP bananas and the third provides for all the other third countries to receive 50.6% of the total quota.
22.
Article 3(2) of Regulation No 478/95 provides:
"For goods originating in Colombia, Costa Rica or Nicaragua, the application for an import licence of Category A or C, as referred to in Article 9(4) of Regulation (EEC) No 1442/93, shall also not be admissible unless it is accompanied by an export licence currently valid for a quantity at least equal to that of the goods, issued by the competent authorities ..."
23.
By judgment given on 10 March 1998 in Case C-122/95
Germany
v
Council
[1998] ECR I-973 ( "Germany
v
Council "
), the Court of Justice annulled the first indent of Article 1(1) of Council Decision 94/800 to the extent that the Council thereby approved the conclusion of the Framework Agreement, in so far as the latter exempts Category B operators from the export-licence system for which it provides.
24.
In that judgment the Court of Justice held that, with regard to that exemption, the plea alleging breach of the general principle of non-discrimination laid down in the second subparagraph of Article 40(3) of the EC Treaty (now, after amendment, the second subparagraph of Article 34(2) EC) was well founded (paragraph 72).
It reached that conclusion after finding, first, that Category B operators benefited, in the same way as Category A and C operators, from the quota increase and the concomitant lowering of customs duties under the Framework Agreement and, second, that the restrictions and differences in treatment to which Category A and C operators were subject as a result of the banana import regime set up by Regulation No 404/93 also applied to the part of the quota corresponding to that increase (paragraph 67).
25.
The Court of Justice considered that, in those circumstances, in order to justify recourse to a measure such as the one at issue in this case, it was for the Council to demonstrate that the balance between the various categories of operators established by Regulation No 404/93 and disturbed by the increase in the tariff quota and the concomitant lowering of customs duties, could have been restored only by granting a substantial advantage to Category B operators and, thus, at the cost of introducing a new difference in treatment detrimental to the other categories of operators (paragraph 68).
It considered that, in the case in point, the Council's statement that that balance had been disturbed, and the mere assertion that exemption of Category B operators from the export-licence system was justified by the need to restore that balance, had not established that to be the case (paragraph 69).
26.
In its judgment of 10 March 1998 in Joined Cases C-364/95 and C-365/95
T. Port
[1998] ECR I-1023 the Court of Justice, having in essence followed reasoning identical to that followed in
Germany
v
Council
, cited above, ruled:
"Regulation [No 478/95] is invalid to the extent to which Article 3(2) thereof imposes only on Category A and C operators the obligation to obtain export licences for bananas from Colombia, Costa Rica or Nicaragua"
(point 2).
"
Facts and procedure before the Court of First Instance
3.
With regard to the facts of the case, the Court of First Instance found as follows in the contested judgment:
"27.
The applicant is an importer of fruit, established in Germany, and has for a long time traded in third-country bananas.
It was a Category A operator.
28.
At a date not specified by the applicant, it concluded contracts with producers in Costa Rica for the delivery of bananas which were to be marketed in the Community.
It claims that it was obliged to that end to purchase export licences from that State.
"
4.
In those circumstances, on 4 January 1999 T. Port brought an action for damages before the Court of First Instance on the basis of Article 178 in conjunction with the second paragraph of Article 215 of the EC Treaty (now Articles 235 EC and the second paragraph of Article 288 EC), in which it claimed in particular that the Community should be ordered to pay it, first, damages of DEM 828 337.10, being the price of the export licences which it had had to purchase in order to import from Costa Rica into the Community and market in Germany third-country bananas of which it was obliged to take delivery pursuant to contracts concluded with producers established in that country and, second, the sum of DEM 126 356.80, being the cost of financing the purchase of those licences.
The contested judgment
5.
After dismissing, in paragraphs 36 to 41 of the contested judgment, a plea of inadmissibility raised by the Commission and noting in paragraph 42 of that judgment that the Community's non-contractual liability under the second paragraph of Article 215 of the EC Treaty depends on the coincidence of a set of conditions as regards the unlawfulness of the acts alleged against the Community institutions, the fact of damage and a causal link between the conduct of the institution and the wrongful act complained of, the Court of First Instance pointed out in paragraph 55 that, according to settled case-law, it is for the party seeking to establish the Community's liability to adduce conclusive proof as to the existence or extent of the damage he alleges.
6.
With regard to the first head of damage, which concerns the cost of T. Port's purchasing licences to export bananas from Costa Rica, the Court of First Instance found, first, in paragraph 57 of the contested judgment, that the appellant had produced a certified statement of its auditor in which the latter declared that
"from 1996 to 1998, [it] disbursed DEM 828 337.10 on purchasing export licences for bananas from Costa Rica"
.
In the same paragraph, the Court of First Instance stated that it was clear from the appellant's pleadings and from what it said at the hearing that in its view the expenditure mentioned in that certified statement in itself constituted the loss it had suffered and that there was no point in considering what effect that expenditure actually had on the profitability of the corresponding commercial transactions, with the result that it was not, therefore, incumbent on T. Port to supply any further particulars or evidence.
7.
The Court of First Instance then set out the following:
"58.
That approach cannot be accepted, for several reasons.
59.
In the first place, there is nothing in the certified statement referred to which makes it possible to determine whether the sum really corresponds to the cost of purchasing export licences.
60.
In the second place, even on the assumption that that sum is unarguably genuine, it has by no means been established that the applicant itself actually used all the export licences corresponding to that sum in order to import bananas into the Community.
That evidence is indispensable since, as the Commission has pointed out and the applicant has not denied, the export licences held by one operator could, in practice, be sold to another operator, or indeed be exchanged for import licences.
61.
The two certified statements of the auditor, annexed to the reply, are not in this regard conclusive.
They simply state that in 1996, 1997 and 1998 respectively the applicant paid DEM 767 225.38, DEM 489 029.36 and DEM 1 419.11 by way of
"import duties on imports of bananas from Costa Rica"
.
In the absence of any information regarding the quantities of bananas to which those total amounts relate, or the quantities to which the abovementioned amount of DEM 828 337.10 relates, or the parameters used by the auditor in arriving at those sums, it cannot be established with the requisite certainty that the quantities of bananas imported from Costa Rica into the Community by the applicant between 1996 and 1998 correspond to the quantities of bananas in respect of which it purchased export licences in that country.
In addition, and in any event, the possibility remains that some of the import duty paid by the applicant relates to bananas imported into the Community under Category B import licences which did not require the production of an export licence.
It may be noted in this connection that it is stated in one of the certified statements referred to above that the applicant purchased
"additional licences for imports of bananas from Costa Rica"
, without specifying the category to which the licences related.
62.
The applicant ought to have taken all the greater care to communicate information on those various points because, both in its defence and in its rejoinder, the Commission expressly drew the applicant's attention to the fact that such information was essential if the existence and extent of the damage alleged were to be established.
Notwithstanding those observations, the applicant ─ as it acknowledged at the hearing in response to a question put by the Court of First Instance ─ has deliberately chosen not to supply the information.
63.
In the third place, even if the applicant did use on its own account all the export licences it had acquired, its method of determining loss, which is to claim that the loss is equal to the expense incurred, cannot be accepted.
64.
First, it is not inconceivable that, as the Commission has claimed, the cost of purchasing the export licences has been partly, or indeed wholly, passed on by the applicant in its sale prices.
That suggestion is all the more plausible because the quantities of bananas the importation of which into the Community depended on the issuing of an export licence represented a substantial proportion of the tariff quota.
65.
The applicant has not put forward anything to suggest that it was not possible to pass on the cost, nor has it even denied having done so in this case.
It has merely objected that that argument was raised by the Commission for the first time at the hearing and cannot therefore be taken into consideration by the Court.
That objection cannot be upheld, since the Commission expressly pointed out in its pleadings the need for information concerning the cost factors linked to the export licence regime and concerning the circumstances in which the bananas were imported.
Since the applicant has deliberately chosen to adopt an especially restrictive approach with regard to the furnishing of evidence, it is not reasonable for it to complain that the Commission expressed some of its criticisms in greater detail at the hearing.
66.
Second, the Commission's submission that the disadvantage constituted by the obligation on the part of Category A and C operators to acquire export licences was offset, at least in part, by the two other accompanying measures laid down in the Framework Agreement, namely the increase of 200 000 tonnes in tariff quota and the reduction of ECU 25 per tonne in the customs duty applicable to imports of third-country bananas within that quota, would not seem to be groundless.
It is true that those measures benefited Category B operators too, since part of the tariff quota was reserved for them also.
However, they benefited to a lesser extent only, since their share was limited to 30%, the other 70% being allocated to Category A and C operators.
67.
It follows that the mere fact, assuming it to have been proved, that an operator has borne additional costs connected with its business dealings does not necessarily imply that it suffered a corresponding loss.
In this instance, by deliberately confining itself to basing its application on the single fact that it had incurred certain costs, the applicant has therefore not adduced sufficient proof of having actually sustained loss.
"
8.
As regards the second head of claim, the loss allegedly arising from the cost of financing the purchase of export licences, the Court of First Instance considered in paragraphs 68 to 74 of the contested judgment that that claim had not been sufficiently proved either.
9.
Accordingly, in paragraph 75 of the contested judgment, the Court of First Instance held that, since the appellant had not sufficiently established the existence and extent of the alleged damage, the Community could not incur non-contractual liability.
10.
In paragraph 76 of the contested judgment, the Court of First Instance found, furthermore, that the appellant had not adduced evidence to show that there was any direct causal link between the unlawful conduct of which it accused the Commission, namely the introduction of the export licence regime under Regulation No 478/95, and the damage it had allegedly sustained, as required by settled case-law.
In that connection it reasoned as follows:
"77.
In its application [the applicant] claims that
"the infringement adversely affecting it is ... the cause of the loss for which [it] demands compensation"
. It explains that it
"was obliged to take delivery of goods from its producer in Costa Rica"
and that
"in order to obtain import licences for those bananas and to be able to market them in the Community, it had to prove the existence of corresponding export licences to the competent German authority when applying for the import licences"
.
78.
It must be observed that the applicant has not, however, adduced any evidence to prove that there was any such obligation to supply, notwithstanding the fact that in its pleadings the Commission expressly emphasised that it was necessary to ascertain the extent of that obligation and also the other essential conditions resulting from the delivery contracts concluded with the Costa Rican producers.
79.
What is more, indeed, the applicant has neither maintained nor,
a fortiori
, proved that it had concluded those contracts before Regulation No 478/95 was adopted.
In its application it merely states that
"since 1995 it has had import contracts with Costa Rican banana producers"
.
On being asked at the hearing to supply further details concerning that claim, it did no more than say, vaguely, that those contracts had been
"negotiated"
in 1995 and that the imports of bananas in question had begun during the following year.
80.
The various items of information relating to those contracts are especially necessary since it is not inconceivable that the alleged damage was, wholly or partly, the consequence of a purely commercial decision taken by the applicant to conclude delivery contracts with Costa Rican producers rather than with producers of another third country which has not introduced an export licence regime.
Accordingly, even if the presumption must be that the delivery contracts in question were concluded before Regulation No 478/95 was adopted ─ which would seem doubtful ─ it could have been established that no such decision was taken only if the applicant had set out the legal or factual reasons for which it could not have freed itself from those contractual commitments between 1995 and 1998.
If it must be presumed ─ as seems to be the case here ─ that it concluded those contracts after the regulation was adopted, then it ought to have explained why it had been able to approach only Costa Rican producers.
"
11.
In paragraph 81 of the contested judgment, the Court of First Instance held that none of the conditions which were essential if the Community were to incur liability vis-à-vis the appellant had been satisfied and that, accordingly, without there being any need to rule on the legality of the conduct for which the Commission had been criticised, the action for damages brought by T. Port must be dismissed as unfounded.
The appeal
12.
T. Port claims that the Court of Justice should:
─
set aside in part the contested judgment; and
─
giving judgment in the matter, uphold the claims made at first instance that the defendant should be ordered
"to pay the applicant damages of DEM 828 337.10 in respect of its loss suffered through having to buy export licences in Costa Rica in order to be able to use its rights as a Category A operator to import bananas into the Community and market third-country bananas from Costa Rica in Germany"
.
13.
The Commission contends that the Court should dismiss the appeal as unfounded and order the appellant to pay the costs at both instances.
If the Court were to allow the appeal (in part), the Commission argues that the appellant's claim for an order that the Commission should pay it DEM 828 337.80 to make good its loss should be dismissed as unfounded and that the appellant should be ordered to pay the costs at both instances.
14.
In support of its appeal, T. Port puts forward several grounds of appeal, the first and second alleging errors of law committed by the Court of First Instance in defining the loss it claims to have sustained, the third alleging breach of the obligation to state adequate reasons in relation to the Court of First Instance's refusal to take into consideration, as a means of proving that loss, the auditor's certified statement which it had produced, the fourth, alleging an error of law committed by the Court of First Instance in its assessment of the arguments with regard to the use of the export licences and the fifth alleging an error law in the consideration of the direct causal link between the Commission's supposedly unlawful conduct and the loss supposedly sustained.
The first two grounds of appeal
15.
In its first two grounds, which it is appropriate to consider together, T. Port maintains, first, that in paragraphs 63 to 65 of the contested judgment the Court of First Instance refused to recognise that the damage sustained could simply be equal to the costs incurred in purchasing export licences and required T. Port to prove that it had not passed on those costs in its sale prices and, second, that in paragraph 66 of the contested judgment the Court of First Instance misapplied the principle
compensatio lucri cum damno
by applying it to a situation in which the advantages created ─ in the circumstances of this case, the increase in tariff quota and the reduction in customs duties ─ are not a consequence of the breach of law which occasioned the loss ─ in this case, the costs involved in the mandatory purchase of the export licences ─ which it is supposed that those advantages offset.
16.
In this connection it is sufficient to note that paragraph 63 of the contested judgment makes it clear that the reasoning concerning the definition of loss challenged in the first two grounds of appeal was given for the sake of completeness in relation to the reasoning set out in paragraphs 59 to 62 of the contested judgment, in which the Court of First Instance rejected as insufficient the evidence produced by T. Port with a view to proving the loss it claimed to have sustained.
17.
It is settled case-law that the Court of Justice will reject outright complaints directed against grounds of a judgment of the Court of First Instance included purely for the sake of completeness since they cannot lead to the judgment's being set aside (Case C-244/91 P
Pincherle
v
Commission
[1993] ECR I-6965, paragraphs 25 and 31, and Case C-264/95 P
Commission
v
UIC
[1997] ECR I-1287, paragraph 48).
18.
In those circumstances the first two grounds of appeal must be rejected.
The third ground of appeal
19.
In its third ground of appeal T. Port maintains that the contested judgment is vitiated by insufficient reasoning, inasmuch as the Court of First Instance failed to explain why the auditor's certified statement, produced by the appellant, indicating that
"from 1996 to 1998 [the appellant had] disbursed DEM 828 337.10 on purchasing export licences for bananas from Costa Rica"
, was not sufficient to establish that the appellant had actually sustained loss as it claimed as a result of purchasing those licences.
20.
In paragraph 61 of the contested judgment, however, the Court of First Instance explained that, in the absence of any information regarding the quantities of bananas to which the abovementioned amount of DEM 828 337.10 relates, or the parameters used by the auditor in arriving at that amount, it cannot be established with the requisite certainty that the quantities of bananas imported from Costa Rica into the Community by the applicant between 1996 and 1998 correspond to the quantities of bananas in respect of which it purchased export licences in that country.
21.
Furthermore, in paragraph 62 of the contested judgment, the Court of First Instance added that the appellant ought to have taken all the greater care to communicate information on those various points because the Commission had expressly drawn its attention to the fact that such information was essential if the existence and extent of the damage alleged were to be established.
22.
The inevitable conclusion must therefore be that, contrary to T. Port's claims, the Court of First Instance did in fact state its reasons for finding that the auditor's certified statement produced by T. Port was not sufficient to establish the existence of the alleged damage.
23.
In those circumstances, the third ground of appeal must also be rejected.
The fourth ground of appeal
24.
By its fourth ground of appeal, T. Port claims that by holding, in paragraph 60 of the contested judgment, that it has by no means been established that the appellant itself actually used all the export licences corresponding to the sum certified by its auditor in order to import bananas into the Community, the Court of First Instance made an incorrect assessment of its argument that its own use of the export licences is proved by the fact of its having made the imports.
It argues that the payment of import duty, also certified by the auditor, the amounts of which are set out in paragraph 61 of the contested judgment, proves that it did actually use the licences and make the imports in question.
It states in this connection that the quantities of bananas imported could be deducted from the amount of import duties paid on the basis of a customs duty of ECU 75 or DEM 146.69 per tonne and that the price of the licences was DEM 96.61 per tonne.
25.
The fact remains that by this ground of appeal T. Port is challenging the Court of First Instance's assessment of the value of the evidence produced before it.
26.
In paragraphs 60 and 61 of the contested judgment, the Court of First Instance found that the certified statements made by the auditor and produced by T. Port were insufficient either to prove that the latter had actually used all the export licences in order to make imports into the Community or to establish that the quantities of bananas imported from Costa Rica into the Community by T. Port between 1996 and 1998 corresponded to the quantities of bananas for which it had purchased export licences in that country.
Moreover, paragraph 62 of that
judgment makes it clear that T. Port quite deliberately refused to communicate to the Court of First Instance the additional information which the latter considered essential if the existence and extent of the alleged damage were to be established.
27.
It is settled case-law that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts.
Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (Case C-185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I-8417, paragraph 24).
That appraisal does not therefore constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject as such to review by the Court of Justice (Case C-8/95 P
New Holland Ford
v
Commission
[1998] ECR I-3175, paragraph 26, and Joined Cases C-24/01 P and C-25/01 P
Glencore and Compagnie Continentale
v
Commission
[2002] ECR I-10119, paragraph 65).
28.
Since T. Port has neither established, nor even argued, that the Court of First Instance distorted the clear sense of the evidence produced before it, the fourth ground of appeal must in those circumstances be rejected as inadmissible.
The fifth ground of appeal
29.
By its fifth ground of appeal T. Port claims that in paragraphs 76 to 80 of the contested judgment the Court of First Instance wrongfully refused to recognise that the mere fact that it had imported bananas from Costa Rica under the Framework Agreement was sufficient to establish a direct causal link between the Commission's allegedly unlawful conduct and the loss allegedly sustained.
30.
According to settled case-law recalled by the Court of First Instance in paragraph 42 of the contested judgment, the Community's non-contractual liability depends on the coincidence of a set of conditions as regards the unlawfulness of the acts alleged against the Community institutions, the fact of damage and a causal link between the conduct of the institution and the damage complained of (Joined Cases C-258/90 and C-259/90
Pesquerias De Bermeo and Naviera Laida
v
Commission
[1992] ECR I-2901, paragraph 42).
The cumulative nature of those conditions means that if one of them is not satisfied, the Community cannot incur non-contractual liability (see, to that effect,
inter alia
Case C-257/98 P
Lucaccioni
v
Commission
[1999] ECR I-5251, paragraphs 63 and 64, and Case C-237/98 P
Dorsch Consult
v
Council and Commission
[2000] ECR I-4549, paragraph 54).
31.
In paragraph 75 of the contested judgment the Court of First Instance held that, since the appellant had not sufficiently established the existence and extent of the alleged damage, the Community could not incur non-contractual liability.
32.
It follows from paragraphs 15 to 28 of this judgment that none of the grounds of appeal directed against that finding of the Court of First Instance can be accepted.
33.
In those circumstances, the inevitable conclusion is that the fifth ground of appeal, even if it were well founded, could not lead to the setting aside of the contested judgment and must therefore be rejected as ineffective.
34.
Since none of the grounds of appeal put forward by T. Port can be upheld, the appeal must be dismissed.
Decision on costs
Costs
35.
Under Article 69(2) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the other party's pleadings.
Since the Commission has applied for costs and T. Port has been unsuccessful, the latter must be ordered to pay the costs.
Operative part
On those grounds,
THE COURT (Sixth Chamber)
hereby:
1.
Dismisses the appeal;
2.
Orders T. Port GmbH
& Co. KG to pay the costs.