Keywords

Summary



Keywords

1. Non-contractual liability — Conditions — Sufficiently serious breach of a superior rule of law for the protection of individuals — No discretion for institution — Mere infringement of Community law sufficient — (Art. 288, second para., EC)

2. Agriculture — Common organisation of the markets — Bananas — Import arrangements — Tariff quota — Opening and allocation of the quota — Transitional measures as a result of the accession of Austria, Finland and Sweden — Regulation No 1924/95 — Application only within the context of the arrangement established by Regulation No 1442/93 — Application until abolition of the latter regulation — (Council Regulation No 404/93; Commission Regulations Nos 1442/93, 1924/95, Art. 6, and 2362/98)

3. Agriculture — Common organisation of the markets — Bananas — Import arrangements — Tariff quota — Opening and allocation of the quota — Allocation of rights to import licences — Determination of criteria — Principle of the protection of legitimate expectations — Infringement — None — (Council Regulation No 404/93; Commission Regulation No 1442/93)

4. Agriculture — Common organisation of the markets — Bananas — Import arrangements — Tariff quota — Opening and allocation of the quota — Regulation No 2362/98 — Taking into account of imports actually carried out during a reference period prior to its publication — Infringement of the principle of legal certainty — None — (Commission Regulations Nos 1442/93 and 2362/98)

5. Agriculture — Common organisation of the markets — Bananas — Import arrangements — Tariff quota — Regulations — Procedure by which they are drawn up — Distinction between basic regulations and implementing regulations — Powers conferred by the Council on the Commission in general terms — Lawfulness — (EC Treaty, Art. 155, fourth indent (now Art. 211, fourth indent, EC); Council Regulation No 404/93, Art. 19(1))

6. Non-contractual liability — Conditions — Lawful act — Real damage, causal link and unusual and special damage — Cumulative nature — (Art. 288, second para., EC)

Summary

1. In order for the Community to incur non-contractual liability within the meaning of the second paragraph of Article 288 EC, a number of conditions must be satisfied: the conduct alleged against the Community institutions must be unlawful, the damage must be real and there must be a causal link between that conduct and the damage complained of.

As regards the first of those conditions, it must be shown that there has been a sufficiently serious breach of a rule of law intended to confer rights on individuals. As regards the requirement that the breach be sufficiently serious, the decisive test for finding that it is fulfilled is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion. Where that institution has only a considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach.

see paras 70-71

2. Article 6 of Regulation No 1924/95 laying down transitional measures for the application of the tariff quota arrangements for imports of bananas as a result of the accession of Austria, Finland and Sweden, which established the manner in which the rights of all operators who supplied those new Member States for the whole of 1995 were to be fixed at the time of the determination of reference quantities in respect of any period including 1995, could apply only within the context of the 1993 arrangement established by Regulation No 1442/93 laying down detailed rules for the application of the arrangements for importing bananas into the Community, to which that provision referred, and only during the period when it was in force, that is, until 31 December 1998. That is supported, in particular, by the purpose of said Article 6, which was to ensure that, when the transitional measures adopted following the accession of the new Member States ceased to apply, the reference quantities for all operators, including those who had supplied those States in 1995, would be determined precisely in accordance with the same criteria. That purpose became meaningless once the 1993 regime had been abolished and replaced, as from 1 January 1999, by a new regime established by Regulation No 2362/98 laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community.

see paras 79-80

3. Since the Community institutions enjoy a margin of discretion in the choice of the means needed to implement their policy, economic operators cannot claim to have a legitimate expectation that an existing situation which is capable of being altered by decisions taken by those institutions within the limits of their discretionary power will be maintained. This is particularly true in an area such as the common organisation of markets, which involves constant adjustments to meet changes in the economic situation.

Since the determination of the criteria governing the allocation of rights to licences is one of the choices as to the appropriate means for implementing the policy of Community institutions with regard to the common organisation of the market in bananas, those institutions have discretion in the matter. Consequently, economic operators have no grounds for a legitimate expectation that the allocation criteria adopted under the former Community regime would be maintained for the purpose of determining their reference quantity.

see paras 83-84

4. Although the principle of legal certainty precludes the temporal scope of a Community act from commencing at a date before its publication, it does not preclude that act from taking into account, for the purpose of implementing a regime applicable after its publication, certain facts which predate its publication.

In the common organisation of the markets in bananas, Regulation No 2362/98 laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community, which had been published in the Official Journal of the European Communities on 31 October 1998 and was aimed at introducing a new arrangement for imports of bananas into the Community as from 1 January 1999, applied only to imports of bananas which would be carried out as from that date. The fact that that regulation took into account, for the purposes of determining the reference quantity to be attributed to operators under the 1999 regime established by the same regulation, imports actually carried out during an earlier reference period and laid down certain rules for proving that those imports had in fact been carried out had no effect on a situation established before the publication of that regulation and, in particular, had no effect on the reference quantities determined under the former 1993 regime established by Regulation No 1442/93.

see paras 90-91

5. Under the fourth indent of Article 155 of the Treaty (now the fourth indent of Article 211 EC), the Commission, with a view to ensuring the proper functioning and development of the common market, is to exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter. It is clear from the Treaty context in which that article must be placed and also from practical requirements that the concept of implementation must be given a wide interpretation. Since only the Commission is in a position to keep track of agricultural market trends and to act quickly when necessary, the Council may confer on it wide powers in that sphere. Consequently, the limits of those powers must be determined by reference amongst other things to the essential general aims of the market organisation. Thus, in matters relating to agriculture, the Commission is authorised to adopt all the implementing measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council.

Moreover, a distinction must be drawn between rules which, since they are essential to the subject-matter envisaged, must be reserved to the Council’s power, and those which, being merely of an implementing nature, may be delegated to the Commission. Only those provisions which are intended to give concrete shape to the fundamental guidelines of Community policy can be classified as essential. A provision drafted in general terms provides a sufficient basis for the authority to act. Since the Council has laid down in a basic regulation the essential rules governing the matter in question, it may delegate to the Commission general implementing power without having to specify the essential components of the delegated power.

In the common organisation of the markets in bananas, Article 19(1) of Regulation No 404/93 on the common organisation of the market in bananas, as amended by Regulation No 1637/98, which empowers the Commission to adopt the rules for the management of the tariff quotas and imports of traditional ACP bananas, complies with the principles referred to above. In particular, by there providing that the tariff quotas indicated in Article 18(1) and (2) and imports of traditional ACP bananas shall be managed in accordance with the method based on taking account of traditional trade flows (traditionals/newcomers), the Council adequately described the essential elements of the implementing power conferred on the Commission.

see paras 118-120

6. In the event of the principle of non-contractual liability as a result of a lawful act being recognised in Community law, a precondition for such liability would in any event be the cumulative satisfaction of three conditions: the reality of the damage allegedly suffered, the causal link between it and the act on the part of the Community institutions, and the unusual and special nature of that damage. Damage is special when it affects a particular class of economic operators in a disproportionate manner by comparison with other operators, and unusual when it exceeds the limits of the economic risks inherent in operating in the sector concerned, the legislative measure that gave rise to the damage pleaded not being justified by a general economic interest.

see paras 150-151