The consequence of the allocation of tariff quotas between traditional operators and newcomers is that genuine newcomers are able to act on the market and therefore deploy their economic activities fully. In that regard, as is apparent from recital 8 in the preamble to Regulation No 2362/98, the purpose of the eligibility criteria for new operators, in the context of the administration of tariff quotas, is to avoid the registration of purely fictitious agents and thereby combat speculative and artificial practices. Accordingly, the objective of the requirement laid down in Article 7(a) of Regulation No 2362/98 that newcomers should engage in commercial activity independently is to prevent a traditional operator who is already in receipt of part of the tariff quotas from being able to appropriate, through another operator, the share of tariff quotas that is reserved for newcomers. It follows that that requirement must be interpreted as also covering the importation of bananas by newcomers under the tariff quotas.

Article 7(a) of Regulation No 2362/98 laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community, as amended by Regulation No 1632/2000, in conjunction with Article 11 of that regulation, is to be interpreted as meaning that the requirement that an economic agent must have been engaged in commercial activity as an importer independently and on his own account must be satisfied not only for the purpose of the registration of such an agent as a ‘newcomer’ within the meaning of that provision but also that of ensuring that the agent may maintain that status in order to import bananas under the tariff quotas laid down by Regulation No 404/93 on the common organisation of the market in bananas, as amended by Regulation No 1257/1999.

Article 21(2) of Regulation No 2362/98 laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community, as amended by Regulation No 1632/2000, must be interpreted as precluding transactions whereby a newcomer purchases, through another operator registered as a newcomer, goods from a traditional operator before the goods are imported into the EU, then sells them to that traditional operator, through the same intermediary, after importing the goods into the EU, if those transactions constitute an abusive practice, which it is for the national court to establish.

As to the reason for those transactions, it must be shown, in order to prove abuse, that the essential purpose of the transactions is to enable the traditional operator concerned to import his own bananas at the preferential rate of duty under the part of the tariff quotas reserved for newcomers. In that regard, for it to be possible to regard such transactions as being designed to confer an undue advantage on the purchaser in the European Union, it is necessary that the importers intended to confer such an advantage on that purchaser and that the transactions be devoid of any economic and commercial justification for those importers. Even if such transactions are based on the desire of the purchaser to benefit from the preferential rate of duty and even if the importers concerned are aware of this, those transactions may not, a priori, be regarded as being devoid of economic justification for the importers. It cannot, however, be excluded that, in certain circumstances, such transactions were artificially created with the essential aim of benefiting from the preferential rate of duty.

It is possible to determine whether such purchase and sale transactions were artificial in the light, in particular, of indications suggesting that the role of the newcomers in those transactions was in fact merely that of fictitious agent for the benefit of a traditional operator within the meaning of Article 3 of Regulation No 2362/98. The national court may take into account all the legal, economic and/or personal links between the operators involved in those transactions and take into consideration in particular the fact that the newcomer holding import licences did not assume any commercial risk in the transactions at issue, because that risk was in reality covered by the purchaser in the EU, which is also a traditional operator, or the fact that, in the light of the sale and resale price of the goods concerned, the newcomer’s profit margin was insignificant. Moreover, the systematic involvement in such transactions of an intermediary company which is registered as a newcomer may also provide an indication that those transactions are artificial if it is established that the sole purpose of that involvement was to conceal the links between a traditional operator and newcomers in order to circumvent the application of Article 21(2) of Regulation No 2362/98.

(see paras 64-67, 69, 70, operative part 2)