OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 29 October 2009 1( )

Case C‑419/08 P

Trubowest Handel GmbH

and

Viktor Makarov

v

Council of the European Union

and

Commission of the European Communities

(Appeals – Dumping – Damage allegedly suffered following the adoption of Regulation (EC) No 2320/97 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes – Conditions for engagement of the non-contractual liability of the Community)

I – Background to the dispute, the contested decision, the procedure and the forms of order sought

1. In this appeal, Trubowest Handel GmbH and Mr Viktor Makarov are seeking the annulment of the judgment of the Court of First Instance of the European Communities in Case T‑429/04 Trubowest Handel and Makarov v Council and Commission, ( ) in which that court dismissed their action for compensation, based on the second paragraph of Article 288 EC, in respect of loss which they claim to have suffered through the adoption of Council Regulation (EC) No 2320/97 of 17 November 1997 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic, repealing Regulation (EEC) No 1189/93 and terminating the proceeding in respect of such imports originating in the Republic of Croatia ( ) (‘the definitive regulation’). That regulation has not been applicable since 21 July 2004, in accordance with Council Regulation (EC) No 1322/2004. ( )

2. Between January and October 1999, the German company Trubowest Handel GmbH (‘Trubowest’) imported into the European Community seamless pipes and tubes originating in Russia. That company, the managing director of which is Mr Makarov, was successor to the company Truboimpex Handel GmbH (‘Truboimpex’), the managing director of which was also Mr Makarov.

3. In October 1999, the Amtsgericht Kleve (Local Court, Cleves) (Germany) issued an arrest warrant against Mr Makarov on the strong suspicion of having supplied the tax authorities with inaccurate and incomplete information concerning important tax matters, thereby largely enabling him to escape paying import duties. In particular, the arrest warrant states that the pipes and tubes originating in Russia imported by Truboimpex and Trubowest had been the subject-matter of false declarations in order to circumvent the provisions of the definitive regulation.

4. Under that arrest warrant, Mr Makarov was placed in detention from 27 October to 12 November 1999, then, following his release, made subject to measures restricting his freedom of movement.

5. At the end of October 1999, the German customs authorities notified Trubowest and Mr Makarov of post-clearance notices of assessment requiring payment of anti-dumping duties relating to the imports carried out by Truboimpex and Trubowest during the period from December 1997 to October 1999. The German customs authorities essentially took the view that the applicants’ imports had, incorrectly, not been classified under the Community nomenclature codes for seamless pipes and tubes covered by the definitive regulation.

6. According to the German customs authorities, Truboimpex and Trubowest were thus liable, in respect of the outstanding anti-dumping duties, to pay EUR 1 575 181.86 and EUR 729 538.78 respectively, that is to say, a total of EUR 2 304 720.64. Furthermore, Mr Makarov was held liable, in his capacity as managing director of Trubowest and Truboimpex, for payment of the total amount owed by those two companies.

7. In November 1999, in accordance with Article 243 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (‘the CCC’) ( ) and the applicable national law, the applicants challenged the post-clearance assessment notices for anti-dumping duties issued against them.

8. Their application for suspension of the notices of assessment having been dismissed by the Finanzgericht Düsseldorf (Finance Court, Düsseldorf) (Germany), the applicants lodged submissions before the Hauptzollamt Duisburg (Principal Customs Office, Duisburg) (Germany) in which they argued, essentially, that the German customs authorities had erred in taking the view that their imports came within the scope of the definitive regulation.

9. On 14 November 2002, the Landgericht Kleve (Regional Court, Cleves), stayed the criminal proceedings against Mr Makarov pending the outcome of the fiscal proceedings concerning him.

10. On 16 July 2004, the Council adopted Regulation No 1322/2004, providing that the definitive regulation would no longer be applicable as from 21 July 2004.

11. On 15 December 2004, the applicants concluded a settlement agreement with the Hauptzollamt Duisburg, which brought to an end the dispute between them and the German customs authorities.

12. Under the terms of that settlement, it was agreed: first, that the tax and liability assessment notices regarding anti-dumping duties in the amount of EUR 2 304 734.45 were to be settled by payment of a total of EUR 460 000; secondly, that upon the signing of the agreement all enforcement measures against Trubowest and Mr Makarov were to be discontinued; thirdly, that the latter waived the raising of any further claims against the customs authority, for example claims for damages relating to the circumstances on which the settlement was based, and also waived further legal remedies against the customs authority, leaving unaffected claims of that kind against others, particularly compensation claims against the Commission of the European Communities and the Council of the European Union under Article 288 EC. The text of the settlement also stated, essentially, that the joint statement of the facts did not resolve the difference between the parties as to the identity of the steel tubes which did or did not fall within the definitive regulation.

13. In May 2005, the criminal proceedings against Mr Makarov were closed, on condition of payment by him of a fine of EUR 18 000.

14. In their action for compensation before the Court of First Instance, the applicants claimed that the Community should make good the damage suffered as a result of the adoption of the definitive anti-dumping measures prescribed by the definitive regulation, by awarding:

– EUR 118 058.46 to Trubowest by way of damages, together with default interest on that sum at the rate of 8% annually; that sum corresponds to the amount actually paid by Trubowest following the various notices of assessment for anti-dumping duties by the German customs authorities against the applicants and constitutes a loss of profit for Trubowest;

– EUR 397 916.91 to Mr Makarov by way of damages, together with default interest on that sum at the rate of 8% annually; that sum corresponds to the total sum of EUR 277 939.37 actually paid by Mr Makarov following the various notices of assessment for anti-dumping duties, while EUR 63 448.54 corresponds to the non-payment of wages by Trubowest to Mr Makarov as from 27 October 1999 and EUR 56 529 corresponds to lawyers’ fees in respect of proceedings between them and the German customs authorities;

– EUR 128 000 to Trubowest, in respect of loss of earnings for the period from 2000 to 2004, together with default interest on that sum at the rate of 8% annually, or, in the alternative, a sum payable to Trubowest for damages to be agreed by the parties following an interlocutory judgment of the Court of First Instance;

– EUR 150 000 to Mr Makarov to compensate him for the non-material damage suffered by him, together with default interest on that sum at the rate of 8% annually.

15. In its judgment, the Court of First Instance, first, declined jurisdiction in respect of the compensation claims for EUR 118 058.46 and EUR 277 939.37 by Trubowest and Mr Makarov respectively in respect of repayment of anti-dumping duties paid, and in respect of the claim for EUR 56 529 in respect of lawyers’ fees incurred by Mr Makarov in the context of the procedure before the German customs authorities. Concerning the first two amounts, the Court took the view, essentially, that such claims fell within the exclusive jurisdiction of the national courts, in accordance with the procedures established by the CCC (paragraphs 42 to 74 of the judgment under appeal). As for the third amount, the Court of First Instance held that the repayment of lawyers’ fees applied for was ancillary to the main dispute between the applicants and the German customs authorities, which fell exclusively within the jurisdiction of the national courts. According to the Court of First Instance, that claim thus also fell outside the jurisdiction of the Community Courts (paragraphs 77 to 81 of the judgment under appeal). Therefore, the Court declared all those claims inadmissible (paragraphs 73, 74 and 82 respectively of the judgment under appeal).

16. Secondly, limiting itself to examining the condition for engagement of the Community’s non-contractual liability concerning the existence of a direct causal link between the unlawfulness alleged and the damage allegedly suffered, the Court of First Instance took the view that, as regards the compensation claims in respect of Trubowest’s loss of earnings assessed at EUR 128 000 and Mr Makarov’s loss of salary assessed at EUR 63 448.54, and as regards also Mr Makarov’s alleged non-material damage assessed at EUR 150 000, the alleged damage did not flow sufficiently directly from the unlawfulness alleged.

17. More precisely, first, on the hypothesis that the definitive regulation did not cover the applicants’ imports and that the latter did not therefore make any error in classifying their imports, the Court held that the Community could not become non-contractually liable since the alleged damage would be attributable solely to the German customs and criminal law authorities and not to the allegedly wrongful conduct of the Council and the Commission (paragraphs 108 to 115 of the judgment under appeal).

18. Secondly, examining the hypothesis that the definitive regulation did cover the applicants’ imports and that the applicants did not therefore classify their imports correctly, the Court held that, in that case, it would be necessary to hold that the determining cause of the alleged losses was the applicants’ own conduct (paragraphs 116 to 121 of the judgment under appeal). In any event, even if the wrongful conduct of the Council and the Commission could be regarded as having contributed to the realisation of the damaged alleged, the causal link would have been broken, in the Court’s view, by the applicants’ lack of reasonable diligence in avoiding the realisation of that damage, the applicants having failed to request a binding tariff information under Article 12 of the CCC (paragraphs 122 to 133 of the judgment under appeal).

19. The Court of First Instance thus, essentially, dismissed the application for compensation as partly inadmissible and partly unfounded.

20. It is in those circumstances that, by document lodged at the Registry of the Court of Justice on 23 September 2008, the applicants brought the present appeal, claiming that the Court should annul the judgment under appeal, allow the compensation claims made at first instance or, in the alternative, refer the matter back to the Court of First Instance, and order the Council and the Commission to pay the costs of the present proceedings.

21. In their respective pleadings in their defence, the Council and the Commission contend that the Court should dismiss the appeal and order the applicants to pay the costs.

22. The applicants, the Council and the Commission presented oral argument at the hearing on 16 September 2009.

II – Legal analysis

A – Preliminary observations

23. In support of their appeal, the applicants rely on two grounds of appeal. The first alleges errors of law by the Court of First Instance in the interpretation and application of the conditions for engaging the non-contractual liability of the Community. The second alleges an error of law by the Court of First Instance in declining jurisdiction concerning the claims for repayment of the anti-dumping duties paid by the applicants and the ancillary claims.

24. Like the Council and the Commission, I take the view that the order of examination of the two grounds of appeal should be reversed. Since it concerns the jurisdiction of the Court of First Instance to rule on certain claims for compensation, the second ground must necessarily be examined before the first, which criticises the assessments made by the Court of First Instance on the substance. Moreover, the Court of First Instance examined the condition concerning the direct causal link between the unlawfulness and the damage alleged by the applicants only in relation to those claims which it held admissible. If the second ground were to be dismissed, as I propose in my argument below, examination of the first ground would thus be limited solely to the claims for compensation which the Court of First Instance itself considered admissible.

B – The second ground of appeal, alleging an error of law as to the lack of jurisdiction of the Court of First Instance to rule on the claims for repayment of the anti-dumping duties paid by the applicants and the ancillary claims

1. Arguments of the parties

25. First, the applicants argue that the Court of First Instance erred in law in declining jurisdiction to repair the damage which subsists following the settlement with the German customs authorities. The Court’s approach had the effect of depriving the applicants of reparation by reason of their having concluded a settlement, the possibility of which is provided for by national law. In the applicants’ submission, similarly to the situation in which, where under national law no remedy is open, it is permissible to bring an action for compensation before the Community judicature, in the case where national remedies have been exercised and exhausted, that court also has jurisdiction to hear actions for damages involving Community liability. The applicants cannot be penalised by the exercise of the right to conclude a settlement and deprived of effective judicial protection. In their submission, with reference to the judgment of the Court of Justice in Krohn Import-Export v Commission, ( ) even as regards pure applications for repayment of anti-dumping duties, actions before the Community Courts are admissible where national remedies have been exercised and the wrongful conduct is attributable to the Community institutions.

26. Secondly, the applicants accuse the Court of First Instance of distorting the facts and the evidence by holding, in paragraph 68 of the judgment under appeal, that they had not supplied the least evidence in support of their claims that, first, the Community and the Russian authorities and, secondly, the criminal proceedings brought against Mr Makarov had played an important part in the decision to conclude the settlement with the German customs authorities.

27. The Council and the Commission argue that this ground of appeal should be dismissed. They consider, first, that, as the Court of First Instance rightly held, since anti-dumping duties are levied by the national customs authorities, only the national courts have jurisdiction to order the repayment of duties unduly levied on the basis of Community provisions. In the Commission’s submission, the jurisdiction of the Community Courts covers only possible damage going beyond mere repayment of duties unduly levied. Moreover, it argues, the applicants’ line of argument does not contradict the assessments of the Court of First Instance.

28. The Council adds that the settlement concluded with the German customs authorities cannot give rise to the jurisdiction of the Community judicature on the pretext that that settlement did not remove the alleged damage which arose from the payment of anti-dumping duties and lawyers’ fees. The settlement changed nothing in the applicants’ situation in terms of the possibility of claiming repayment of the anti-dumping duties paid and the legal costs incurred as damages under Article 288 EC. The applicants could not claim them before the settlement and cannot do so afterwards. According to the Council, the only (normal) effect of the settlement was to put an end to the national remedies which the applicants had for recovering the duties paid.

29. The Council and the Commission then reject the reading of the judgment in Krohn Import-Export v Commission which the applicants appear to be making. First, the Council argues that that judgment does not address the question of what may be obtained by way of reparation in the event of an action brought under Article 288 EC, and, secondly, the Commission argues that it cannot be inferred from that judgment that it is sufficient to exercise national remedies for the jurisdiction of the Community judicature to exist.

30. Finally, as regards the allegation of distortion of the facts and the evidence by the Court of First Instance, that claim is either inadmissible inasmuch as, in particular, the appeal does not indicate the legal scope of that distortion, or inoperative because the Court of First Instance does not have jurisdiction to hear the application concerning anti-dumping duties paid. In any event, the Council and the Commission consider that the allegation of distortion is unfounded because the documents produced by the applicants before the Court of First Instance do not show that the latter were put under any pressure to conclude the settlement with the German customs authorities or had no other choice than to conclude that settlement.

2. Assessment

31. As a preliminary observation, it should first be noted that, in their appeal, the applicants do not challenge the classification, made in paragraphs 47 and 80 of the judgment under appeal, to the effect that their applications for compensation found inadmissible by the Court of First Instance constituted, first, claims for repayment of anti-dumping duties which they had paid to the German customs authorities and, secondly, a claim for repayment of lawyers’ fees incurred at national level ancillary to those claims.

32. In that regard, since the applicants do not make any argument capable of disproving the ancillary nature of the lawyers’ fees incurred in the national dispute over the repayment of anti-dumping duties, examination of the second ground of appeal can be limited to the assessments of the Court of First Instance concerning its lack of jurisdiction to rule on the claim for repayment of the anti-dumping duties and thus, according to the judgment under appeal, the inadmissibility of the latter.

33. Nor, as found in paragraph 42 of the contested judgment, do the applicants call into question the applicability of the provisions of the CCC, in particular those governing the ‘repayment and remission of duties’ and the ‘right to appeal’, to claims for repayment of anti-dumping duties. Moreover, the applicability of those provisions of the CCC, especially Articles 236 and 243, to claims for repayment of anti-dumping duties paid by an importer, is already evident from the judgment of the Court of Justice in Ikea Wholesale. ( )

34. As the Court of First Instance correctly pointed out in paragraph 43 of the judgment under appeal, secondary Community law, in this case the CCC, has expressly prescribed the remedy available to debtors of import duties who consider that they have had such duties wrongly imposed on them by the customs authorities. That remedy is exercisable at the national level, in accordance with the appeals procedure implemented by the Member State in question in compliance with the principles set out in Articles 243 to 246 of the CCC.

35. Therefore, and as is also apparent from the case-law, where a claim for compensation coincides with a claim for repayment of a sum unduly paid to the national authorities in the context of the implementation of Community law or for the account of the Community, it is for the person concerned to refer to the competent national courts so that they may rule on the merits of such an action. ( )

36. In that context, where an individual feels that he has been adversely affected by the application of a measure of Community law which he considers to be unlawful, he may, when the implementation of the measure is entrusted to the national authorities, contest the validity of the measure, when it is implemented, before a national court in proceedings between himself and the national authority. Under the conditions set out in Article 234 EC, that court may, or even must, refer to the Court of Justice a question on the validity of the Community measure in question. ( )

37. Without challenging the merits of that case-law, as has also been repeated, essentially, by the Court of First Instance in paragraphs 43, 44 and 57 of the judgment under appeal, the applicants primarily blame the Court of First Instance for holding that it did not have jurisdiction to hear their action for compensation in relation to the payment of anti-dumping duties even though the national remedies had been exercised (and exhausted), without their obtaining full compensation for the damage which they claim to have suffered as a result of the unlawful conduct of the Community.

38. In other words, the applicants appear to be maintaining that, in so far as the settlement which they concluded with the German customs authorities, which had the effect of exhausting internal remedies, nevertheless left them burdened with part of the damage allegedly suffered through undue payment of anti-dumping duties (of the order of about EUR 460 000), they were entitled to claim before the Community Courts repayment of that amount arising from the wrongful conduct attributable to the Community institutions, since those courts should use their subsidiary jurisdiction in such a case.

39. It is true that, in its judgment in Kampffmeyer and Others v Commission, ( ) the Court made examination of an action for compensation, appearing to coincide with a claim for repayment of sums unduly paid to the national authorities charged with enforcement of Community rules, subject to the prior exhausting of internal legal remedies, so as to verify whether the alleged damage could in the first instance be remedied by that repayment. ( )

40. As is shown in particular by paragraphs 48 and 71 of the judgment under appeal, the Court of First Instance based its reasoning not so much on the applicants’ failure to exhaust internal remedies before referring the matter to the Court of First Instance as on the exclusive jurisdiction of the national courts to rule on claims for repayment of anti-dumping duties unduly paid.

41. That approach is also supported in the case-law of the Court of Justice, particularly the judgments in Case 20/88 Roquette frères v Commission ( ) and Vreugdenhil v Commission, ( ) that latter judgment having, moreover, been abundantly cited in the judgment under appeal.

42. Whereas the condition concerning the exhaustion of national remedies constitutes a condition for the admissibility of an action for compensation before the Community judicature, the judgment under appeal, more tellingly, partially dismissed the applicants’ action for compensation on reasoning based on the lack of jurisdiction of the Court of First Instance to hear an action for compensation coinciding with an action for repayment of anti-dumping duties unduly paid. As already stated, the Court of First Instance nevertheless concluded that reasoning, based on its lack of jurisdiction, by holding, in paragraphs 73, 74 and 82 of the judgment under appeal, that the action was ‘inadmissible’ inasmuch as it sought repayment of anti-dumping duties unduly paid.

43. Generally speaking, that approach could appear excessively rigid since it implies, as paragraph 71 of the judgment under appeal illustrates, that the Court of First Instance is inclined to decline jurisdiction to rule on an action for compensation coinciding with a claim for repayment of anti-dumping duties unduly paid, ‘even if the fault alleged by the applicants is attributable to the Community’.

44. It also seems to imply that the Court of First Instance would also decline jurisdiction in the case where internal legal remedies were exhausted and the applicant has, for whatever reason, not obtained before the national courts compensation for the whole of the damage suffered caused by the payment of the duties, even if that damage allegedly arose from wrongful conduct by the Community institutions. That is, moreover, the approach formulated by the applicants, which does not lack a certain relevance if one remembers that, in the judgment in Vreugdenhil v Commission, the Court of Justice verified whether, in that case, the undertaking in question had in fact obtained before the national courts full repayment of the sums unduly levied by the national authorities, ( ) thereby suggested that the Court might regard itself as having jurisdiction to rule on the claim for repayment in the event that Vreugdenhil had not obtained complete satisfaction before the national courts.

45. Even if certain passages in the reasoning of the judgment under appeal may leave a doubt as to the consequences which the Court of First Instance would draw in a case close to the circumstances described in the point above, I do not consider in this case that the applicants’ line of argument is bound to succeed, since the Court of First Instance could do no other than hold their action for repayment of unduly paid anti-dumping duties inadmissible.

46. First, the applicants’ line of argument is based on a criticism which is inadmissible at the appeal stage concerning the assessment of the facts by the Court of First Instance, according to which the conclusion of the settlement between the applicants and the German customs authorities had terminated the actions brought at the national level, without, moreover, the applicants having made any allegation of distortion of the evidence by the Court in that regard. ( )

47. Secondly, I do not think that the Court of First Instance can be blamed for failing to hold that, by the settlement in question, the applicants had exhausted internal remedies, within the meaning of the case-law of the Court of Justice.

48. Under that case-law, exhaustion of internal remedies refers to the exhaustion of ‘all methods of recourse, both administrative and judicial, under the national law applicable’ ( ) in order to obtain repayment of the sums unduly paid. In this case, since the Court of First Instance determined, in paragraph 56 of the judgment under appeal, that by the settlement in question the applicants had waived the possibility of the national courts ruling on their claims for repayment of the anti-dumping duties which they had paid, the applicants cannot rightly claim that they satisfied the condition of exhausting all the methods of recourse, both administrative and judicial, under the national law applicable, within the meaning of the case-law of the Court of Justice.

49. Thirdly, contrary to what the applicants maintain, the conclusion of the settlement with the German customs authorities is in no way comparable to the situation in which national law does not provide any national remedy, since that settlement was made precisely in order to put an end to the national remedies provided for by the CCC concerning the repayment of unduly paid anti-dumping duties.

50. In that regard, the applicants cannot, rightly, rely on the judgment in Krohn Import-Export v Commission, since, having regard to the underlying facts of that case, the Court set aside the application of the condition of the exhaustion of national remedies, prior to the admissibility of the action for compensation before the Community judicature, on the ground that such remedies were not capable of leading to reparation of the damage alleged. ( ) In this case, however, the Court of First Instance made no error of law in holding, in paragraphs 64 to 67 of the judgment under appeal, that the national remedies envisaged by the CCC were appropriate for effectively ensuring the repayment of anti-dumping duties claimed by the applicants.

51. Fourthly, the allegation that the facts and evidence were distorted, examined in paragraph 68 of the judgment under appeal, must, in my opinion, also be dismissed.

52. It should be noted that, in paragraph 68 of the judgment under appeal, the Court of First Instance dismissed in the following terms the applicants’ argument that, in concluding the settlement with the German customs authorities, they did not voluntarily bring an end to the national remedies but were forced to do so by pressure from the Community or Russian authorities:

‘… [T]he applicants have not adduced any evidence in support of their assertion that they were subjected to pressure from the Community or Russian authorities to conclude the settlement agreement, or that the pressure to which they were subjected forced them to conclude the settlement agreement. In support of their assertions the applicants merely produce letters exchanged between the Russian, Community and German authorities which deal essentially with the classification of the imports of tubes and pipes, but in which there is no evidence that the applicants were in any way forced by those authorities to terminate the national proceedings brought. Next, it must be observed that, in any event, the applicants appear to contradict themselves in that respect, since they apparently rely on the fact that they themselves sought to conclude the settlement agreement in order to minimise their losses. In particular, the applicants state in that connection that “[Trubowest] eventually succeeded in mitigating its loss, with the settlement agreement, since instead of being held liable for all claims arising from the post recovery tax orders, it agreed to pay a lesser, although still substantial amount”. Finally, it must be stated that the applicants do not provide any evidence that the criminal proceedings brought against Mr Makarov did not leave them any other choice than to conclude the settlement agreement or that those criminal proceedings were manifestly abusive.’

53. Whilst it is settled case-law that distortion of the evidence produced before the court at first instance does fall within the review powers of the Court of Justice on an appeal, it should be noted that such a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence, ( ) and that it is for the party alleging distortion to prove it. ( ) In addition, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must in particular indicate the legal arguments specifically advanced in support of the appeal. ( )

54. In my view, the applicants’ appeal does not satisfy those conditions. In particular, the appeal does not in any way indicate what precise evidence submitted by the applicants before the Court of First Instance were distorted by the latter and would support the allegation of the applicants. Moreover, by merely referring, without further explanation, to the annexes to their reply lodged before the Court of First Instance, the applicants are effectively seeking a new assessment of the content of those annexes by the Court of Justice, which does not fall within its jurisdiction on an appeal.

55. In any event, the fact that the content of those annexes shows that the Community and Russian authorities were aware of the dispute between the applicants and the German customs authorities on the classification of pipe and tube imports does not in any way demonstrate that the Court of First Instance distorted the evidence by holding that those documents did not in any way prove that the applicants had been forced, in any way whatever, to bring an end to the national proceedings by concluding the settlement in question.

56. Moreover, as the Council has rightly stated in its pleading in response to the appeal, the applicants’ allegation in relation to the alleged distortion of the evidence concerning the influence which the criminal proceedings against Mr Makarov had on the conclusion of the settlement with the German customs authorities must also be dismissed. Annex 7 to the appeal, which contains a decision to suspend prosecution adopted by the Landgericht Kleve in November 2002, two years before the settlement in question, does not demonstrate that the Court of First Instance distorted the evidence when it concluded that the applicants had not adduced the necessary proof that the criminal proceedings left Mr Makarov with no choice but to conclude the settlement.

57. On the strength of those considerations as a whole, I propose that the second ground of appeal should be dismissed.

C – The first ground of appeal, alleging errors of law as to the interpretation and application of the conditions for engaging the non-contractual liability of the Community

58. This ground of appeal is divided into two parts. The first alleges misinterpretation of the conditions for engaging the non-contractual liability of the Community. The second alleges misapplication of the condition concerning the existence of a direct causal link between the alleged unlawfulness of the definitive regulation and the damage alleged.

1. The first part of the first ground of appeal, alleging misinterpretation of the conditions for engaging the non-contractual liability of the Community

a) Arguments of the parties

59. In their appeal, the applicants claim that the judgment under appeal is vitiated by an error of law in that the Court of First Instance did not assess the unlawful conduct complained of prior to examination of the causal link.. At the hearing, the applicants formulated that claim slightly differently, maintaining that when the Community judicature examines the existence or otherwise of a causal link or the breaking of that link, it cannot avoid examining in what legal context that link occurs, particularly the wrongful conduct to which it attaches.

60. The Council and the Commission consider that, in accordance with the case-law, the Court of First Instance was not bound to rule on all the conditions for engaging the non-contractual liability of the Community if one of them is lacking. They submit that there is no principle which obliges the Court of First Instance to rule on the alleged unlawfulness before examining the existence of a causal link between that unlawfulness and the damage alleged.

b) Assessment

61. Having regard to the case-law of the Court, the applicants’ line of argument in support of the first part of the first ground of appeal cannot succeed.

62. It should be recalled that, for the Community to be held non-contractually liable, three conditions must be met. The conduct of which the institutions are accused must be unlawful, the damage alleged must be real, and there must be a causal link between the conduct and the damage. ( )

63. According to consistent case-law, those conditions must be cumulatively fulfilled, so that non-fulfilment of any one of them justifies dismissing the action for compensation, without it being necessary to examine the other conditions. ( )

64. Moreover, as the applicants admit in paragraph 5 of their appeal, the Community judicature is under no obligation to examine the conditions for the liability of an institution in any particular order. ( )

65. That assessment naturally applies to the examination of the condition concerning the causal link between the allegedly unlawful conduct and the damage alleged.

66. In that regard, moreover, it should be noted that the Court of Justice has already confirmed the approach of the Court of First Instance to the effect that there is no need for the Court to examine as a matter of priority whether fault exists on the part of an institution, if the court at first instance considers that one of the other two conditions is lacking in the case brought before it. ( )

67. In this case, since the Court of First Instance found that the condition concerning the causal link between the alleged wrongful conduct and the damage allegedly suffered was not met, it was not under any duty to rule on the existence of fault on the part of the institutions at the adoption of the definitive regulation or on the reality of the damage allegedly suffered by the applicants. It could therefore justifiably restrict itself to assessing the condition concerning the existence of a causal link, assuming solely for the purposes of that assessment that the other two conditions were satisfied as the applicants claimed, as is apparent in particular from paragraphs 98, 107 and 121 of the judgment under appeal.

68. I should add that the applicants have not explained what was supposed to have been the influence of the examination by the Court of First Instance of the alleged wrongful conduct both on the assessment of the condition concerning the causal link in the judgment under appeal and on its operative part.

69. It is, of course, only if the Court of Justice were to find that the judgment under appeal should be annulled for holding that there was no causal link between the unlawful conduct and the damage alleged by the applicants that the Court of First Instance can be regarded has having wrongly failed to rule on at least one of the other two conditions for engaging the non-contractual liability of the Community. However, for the reasons set out in the examination of the second part of this ground of appeal, I do not think that the Court can come to such a conclusion.

70. Therefore, in my opinion, the first part of the first ground of appeal should be dismissed.

2. The second part of the first ground of appeal, alleging misapplication of the condition concerning the existence of a direct causal link between the alleged unlawfulness of the definitive regulation and the damage alleged

a) Arguments of the parties

71. The applicants emphasise first that it is the existence of a direct link of cause and effect between the unlawfulness complained of and the damage of which reparation is sought that constitutes the appropriate criterion for determining whether the condition concerning the causal link is fulfilled. In that respect, they consider that the Court of First Instance was wrong to hold, in paragraph 112 of the judgment under appeal, that they had relied on a concept of the link of causation different from that prevailing in Community law. On the contrary, the applicants argued before the Court of First Instance that, without the adoption of the unlawful definitive regulation, they would not have suffered damage, because the unlawful anti-dumping duties would not have been paid. The applicants consider nevertheless that the Court of First Instance applied an exaggeratedly strict criterion of causation, based on exclusive and direct damage, which was contrary to its own case-law, in this case in paragraph 81 of the judgment of the Court of First Instance in FIAMM and FIAMM Technologies v Council and Commission. ( )

72. Next, as regards the finding of the Court of First Instance concerning the absence of a sufficiently direct causal link in this case, the applicants accuse the Court of First Instance of setting out from two unsupported and irrelevant hypotheses, namely whether or not the definitive regulation covered the products imported by the applicants and whether or not the latter made an error in the classification of their imports, rather than verifying whether, without the unlawful conduct of the Community, damage would have been suffered. In that respect, the applicants reiterate their allegation that the Court of First Instance could not decline to rule on the existence of blameworthy behaviour on the part of the Community institutions.

73. Concerning the first hypothesis examined by the Court of First Instance, namely that according to which the definitive regulation did not cover the imports and the applicants had not made an error in the classification of their imports, the applicants argue that the Court of First Instance declared itself without jurisdiction, essentially, by reason of the fact that the damage suffered was caused by the German customs authorities, which contradicted the order of the Court of First Instance in Sinara Handel v Council and Commission, ( ) delivered in respect of the same wrongful conduct. Moreover, the applicants point out that they were seeking not reparation of the damage suffered by reason of an alleged error in the classification of their imports by the German customs authorities, but reparation of the damage caused by the institution of unlawful anti-dumping duties by the definitive regulation. Furthermore, the Court of First Instance distorted the argument of the applicants concerning the discretion of the German customs authorities before coming to the conclusion, in paragraphs 114 and 115 of the judgment under appeal, that, in essence, it did not have jurisdiction to rule on damage caused by national measures.

74. As regards the second hypothesis envisaged by the Court of First Instance, the applicants consider that the Court of First Instance was wrong to hold that the causal link had been broken by their insufficiently diligent conduct in not requesting a binding tariff information, without even first establishing the existence of a causal link. They also argue that, in the case where the definitive regulation covered their imports, they would have continued to be obliged to pay unlawfully instituted anti-dumping duties and to suffer a loss, at the very least having regard to Trubowest’s loss of earnings, the non-payment of Mr Makarov’s salary and the damage caused by the execution measures of the German customs authorities, which were under a duty to levy them, for the purposes of recovering the duties owing under the definitive regulation. Even if they had requested a binding tariff information, the applicants argue that the damage would in any event have been suffered in that the duties would always have had to be paid.

75. Finally, the applicants accuse the Court of First Instance of contradicting itself in that it held, in paragraph 121 of the judgment under appeal, that they had shown diligence, whereas, in paragraph 133 of that judgment, it accused them of not showing reasonable diligence.

76. Whereas, as a preliminary point, the Council is in doubt whether, having regard in particular to the disorganised character of the applicants’ line of argument, this part of the ground of appeal identifies with sufficient clarity an error of law vitiating the reasoning of the Court of First Instance, the Commission considers that, essentially, the complaints formulated by the applicants consist in challenging the facts as assessed at first instance, save for the allegation that the Court of First Instance applied an exaggeratedly strict criterion concerning the causal link.

77. The Commission adds that, if there is an error of law in the reasoning of the Court of First Instance, that error, which concerns the hypothesis that the applicants’ imports fell within the scope of the definitive regulation, was committed in favour of the applicants. In the Commission’s view, there was no useful purpose in the Court of First Instance going so far as to envisage that hypothesis, which was tantamount to accepting that one of the conditions for engaging Community liability under Article 288 EC could be fulfilled even though the applicants had made no effort, but rather the contrary, to establish at first instance that their imports fell within the scope of the definitive regulation. In the Commission’s submission, it is only in that hypothesis that the Community’s liability under Article 288 EC might possibly be engaged in so far as the applicants had shown that they had suffered loss under the effect of a correct application of the definitive regulation by the German customs authorities.

78. In any event, the Council and the Commission consider that the applicants’ arguments are unfounded.

79. First, the Commission points out that, contrary to what the applicants suggest, the Court of First Instance has never declined jurisdiction over heads of damage other than those concerning the payment of anti-dumping duties. In that regard, both the Council and the Commission maintain that invocation of the order of the Court of First Instance in Sinara Handel v Council and Commission is misplaced, in particular, because the damage alleged in that case concerned precisely the payment of anti-dumping duties and not other types of damage, such as those examined on the substance in the judgment under appeal.

80. Next, the Council disputes the applicants’ argument that a sufficient causal link is demonstrated if, in the absence of the unlawful act complained of, the applicants would not have suffered damage. Such a conception of the causal link is, the Council submits, contrary to the case-law cited in the judgment under appeal. Furthermore, in the Commission’s view, the Court of First Instance did not in any way apply an exaggeratedly strict criterion for the causal link, and its approach was entirely consistent with that which it adopted in its judgment in Case T‑69/00 FIAMM and FIAMM Technologies v Council and Commission.

81. Finally, the Council and the Commission consider that the Court of First Instance was right, in assessing the causal link, to analyse the two factual hypotheses referred to above, given the equivocation on that point by the applicants themselves. According to the Council and the Commission, the applicants’ criticisms in that respect are limited to challenging the assessment of the facts and do not demonstrate that the analysis of causation by the Court of First Instance is legally erroneous.

82. As for the applicants’ claims concerning examination of the first hypothesis by the Court of First Instance, the Council and the Commission consider that the applicants have not in any way supported their allegations.

83. With regard to the criticisms against the analysis made by the Court of First Instance in the context of the second hypothesis, the Council and the Commission argue that, contrary what the applicants suggest, the examination of the Court of First Instance was limited to heads of damage other than those concerning payment of anti-dumping duties. The Council further argues that the applicants have failed to demonstrate that the Court of First Instance erred in law when it held that the fact that the applicants did not act diligently broke the (possible) link between the definitive regulation and the heads of damage other than the payment of anti-dumping duties. In that respect, the Council adds that there is no contradiction in reasoning between paragraphs 121 and 133 of the judgment under appeal, the former having merely not held that the applicants had shown particular diligence. Moreover, it is clear, in the Commission’s submission, that if the Court of First Instance considered that the causal link was broken by the absence of diligence on the part of the applicants, that is because it previously assumed that the conduct in question had contributed to the alleged damage. Finally, the Commission argues, it is only because the applicants did not obtain a binding tariff information at the outset that their situation developed in the way it did and losses were suffered, that situation and those losses therefore not resulting directly from the adoption of the definitive regulation, as the Court of First Instance rightly held in paragraph 116 of the judgment under appeal.

b) Assessment

i) Admissibility

84. Contrary to what the Council and the Commission maintain, I do not think that this part of the first ground of appeal is entirely (or essentially) inadmissible.

85. It should be noted in that respect that the Court of Justice has already ruled that, so far as the non-contractual liability of the Community is concerned, the question as to whether there is a causal link between the wrongful act and the damage, a condition for that liability to be incurred, is a question of law (namely a question concerning the legal classification of the facts by the court at first instance) which, as a consequence, is subject to review by the Court of Justice on an appeal. ( )

86. I do not see how such a solution would not apply to the converse situation, namely that in which, in their appeal, the applicants accuse the Court of First Instance of excluding the existence of a causal link between the wrongful conduct and the alleged damage having regard to the facts of the case invoked before it. That operation always remains one of classifying the facts, which, therefore, must also be subject to review by the Court of Justice when it rules on an appeal.

87. However, having regard to the confusion maintained by the applicants on that point in their appeal, referring many times to the damage allegedly caused to them by payment of the allegedly unlawful anti-dumping duties, it should be stated that, in the light of the reply that was given to the second ground of appeal, examination of this part of the first ground of appeal cannot extend to the two heads of damage which have – rightly, in my view – been declared inadmissible by the Court of First Instance.

88. It follows, in my opinion, that the second part of the first ground of appeal is admissible in so far as it accuses the Court of First Instance of excluding a causal link between the alleged wrongful conduct of the Community institutions and, first, the material damage consisting in Trubowest’s loss of earnings and Mr Makarov’s loss of salary and, second, the non-material damage which the latter claims to have suffered.

ii) Substance

89. According to the case-law, the causal link required for engagement of the Community’s non-contractual liability under the second paragraph of Article 288 EC is constituted where the damage is the direct consequence of the wrongful act in question. ( )

90. It was therefore the task of the Court of First Instance, as it actually did in the judgment under appeal, and, moreover, without it being challenged by the applicants, to examine whether the unlawful act alleged in this case was directly at the origin of the damage claimed in order to establish the existence of a direct link of cause and effect between the conduct by the Community complained of and the damage alleged. ( )

91. The Court of First Instance also correctly pointed out, in paragraphs 100 and 101 of the judgment under appeal, that during the examination of the causal link which must exist between the conduct of the Community institution which is complained of and the harm alleged by the person adversely affected, it is necessary to verify whether, at the risk of having to bear the damage himself, that person demonstrated reasonable diligence in avoiding the damage or limiting its extent, ( ) which implies that, even if the conduct complained of contributed to the realisation of the damage alleged, the causal link may be broken by negligent conduct of the person affected, which may thus constitute the determinant cause of that damage.

92. Without challenging those premisses, the applicants first complain that the Court of First Instance set out from two irrelevant hypotheses in order to examine whether the causal link between the conduct complained of and the heads of damage alleged was sufficiently direct.

93. In that regard, it is true that, in order to carry out its review concerning the existence of a sufficiently direct causal link, the Court of First Instance verified, first, whether such a link could be inferred in the event that the definitive regulation did not cover their imports and thus in the case where the applicants had not made any error in the classification of their imports. In that hypothesis, it deduced, in paragraphs 108 to 115 of the judgment under appeal, that the losses alleged were exclusively attributable to the German customs authorities in so far as they had subjected those imports to anti-dumping duties even though they did not fall within the scope of the definitive regulation. The Court of First Instance thus concluded that, in such a case, the Community could not be held liable.

94. In paragraphs 116 to 133 of the judgment under appeal, the Court of First Instance examined the opposite hypothesis, namely that in which the definitive regulation did cover the applicants’ imports but the latter did not correctly classify their imports. That examination led the Court of First Instance to conclude that the Community could not be held liable in that case either, since the determinant cause of the damage alleged arose from the applicants’ own conduct.

95. In general, the approach of the Court of First Instance in examining two factual hypotheses rather than determining which of them was correct does not appear to me to be in any way erroneous, especially having regard to the circumstances of this case.

96. It is, admittedly, clearly preferable for the Court of First Instance, judging the substance of the case, to be able to carry out all the factual findings enabling it to determine the dispute before it. It is also true that, in basing its reasoning, as in this case, on two diametrically opposed hypotheses, one of them is necessarily erroneous.

97. However, the Court of First Instance cannot be blamed for basing its reasoning on factual hypotheses, especially where those hypotheses cover all the possibilities that may be envisaged in a given case and their alternate examination leads to the same solution. Moreover, the approach of the court basing its reasoning on hypotheses rather than making a finding on the facts also appears to be the only approach possible where, as in this case, the facts at issue, namely the question whether the applicants’ imports had been subject to a correct tariff classification, are a matter of controversy, as paragraphs 105 and 106 of the judgment under appeal show, where, moreover, those controversies were not dissipated at the hearing before the Court of Justice, and where that question is primarily a matter for the assessment of the national customs authorities, in accordance with the provisions of the CCC, as the latter were referred to in paragraph 124 of the judgment under appeal. In my opinion, moreover, the approach adopted in the judgment under appeal also shows the sound administration of justice consisting in replying, in the most exhaustive manner possible, to the arguments set out by the applicants at first instance.

98. That being so, the alleged irrelevance of the factual hypotheses on which the Court of First Instance based its assessments, as argued by the applicants, cannot in my view be accepted. The analysis of those two hypotheses precisely enabled the Court to assess whether the alleged damage was directly attributable to the Community institutions through the (allegedly unlawful) adoption of the definitive regulation.

99. The relevance of those hypotheses is, in my opinion, clear if one bears in mind that one of the heads of material damage alleged by the applicants consists in Trubowest’s loss of earnings arising from its decision to interrupt imports into the Community of the goods in question, as from 27 October 1999, by reason of the imposition of the anti-dumping duties. In order to verify whether the imposition of anti-dumping duties by the definitive regulation was the direct cause of Trubowest’s loss of earnings, in accordance with the criterion established by the case-law, it was entirely correct for the Court of First Instance to envisage, failing a determination and assessment of the facts by itself, both the hypothesis that, having regard to their tariff classification, the applicants’ imports were within the scope of the definitive regulation and the alternative hypothesis that they were not.

100. Thus, first, if the applicants’ imports were not covered by the definitive regulation, it was legally correct, as the Court of First Instance held in paragraphs 108 to 110 of the judgment under appeal, to hold that the applicants could not attribute the alleged loss of earnings to the (allegedly unlawful) adoption of the definitive regulation by the Community institutions, since the adoption of that regulation could not have any impact on those imports.

101. In that regard, concerning the first hypothesis examined by the Court of First Instance, there is no basis for the applicants’ further complaint that it based its reasoning ‘on an exaggeratedly strict criterion of causation, based on exclusive and direct damage’. On the contrary, the Court of First Instance was right to point out, in particular in paragraph 113 of the judgment under appeal, that the case-law of the Court of Justice excludes the possibility of the Community being held liable for damage having its direct cause in the allegedly wrongful conduct of a third party, namely, in this case, the German customs authorities.

102. In my opinion, the additional arguments of the applicants are clearly inoperative because they merely criticise assessments that are entirely secondary in relation to the main conclusion drawn from the analysis of the first hypothesis envisaged by the Court of First Instance, according to which the applicants could not attribute the alleged heads of damage to allegedly wrongful conduct of the Community. That assessment extends in particular to the repeated references by the parties to the appeal to the order of the Court of First Instance in Sinara Handel v Council and Commission, as a criterion for examining the validity of the operative part of the judgment under appeal, the Court of Justice having had referred to it only the appeal against the said judgment and not being bound by the said order.

103. Secondly, if the imports in question were to fall within the scope of the definitive regulation, which is the hypothesis examined in paragraphs 116 to 133 of the judgment under appeal, the Court of First Instance would then have to verify whether Trobowest’s loss of earnings – and the two other heads of damage – capable of arising from the (allegedly unlawful) adoption of the definitive regulation, might not be primarily attributable to another cause.

104. In accordance with the case-law of the Court of Justice, as recalled in paragraphs 100 and 101 of the judgment under appeal, that is precisely the review which the Court of First Instance carried out in the context of the second hypothesis which it examined, concluding that review with the finding that the two heads of material damage and the non-material damage alleged had their principal origin in the negligent or insufficiently diligent conduct of the applicants.

105. In that regard, I consider that the applicants are wrong to blame the Court of First Instance for finding, in particular in paragraph 122 of the judgment under appeal, that the causal link was broken, without having previously established the existence of such a link. It is obvious from that paragraph of the judgment under appeal that it was for the purposes of assessing the existence of the causal link that the Court of First Instance examined the hypothetical case of the alleged wrongful conduct of the Council and the Commission having possibly contributed to the realisation of the losses alleged, which led it to the conclusion that, in this particular case, the applicants had not in any event demonstrated reasonable diligence to avoid or limit those losses, a circumstance which, according to the case-law, allows the Court to discount the existence of a sufficiently direct causal link between the alleged damage and the alleged wrongful conduct of the Community.

106. Therefore, the detailed examination which the Court of First Instance made in paragraphs 122 to 132 of the judgment under appeal, concerning the breaking of the causal link owing to the insufficiently diligent conduct of the applicants, in that the latter had not followed the specific procedure laid down in the CCC so as to secure legal certainty as to the accuracy of the tariff classification of their imports, was founded on the prior premiss that the wrongful conduct in question had contributed to the alleged heads of damage.

107. Moreover, the applicants are wrong to refer, in their substantive criticisms of the assessments by the Court of First Instance, to the allegedly unlawful payment of the anti-dumping duties since those assessments do not relate to that head of damage.

108. Finally, in alleging a contradiction in reasoning between paragraphs 121 and 133 of the judgment under appeal, the applicants are, in my view, misreading those paragraphs. There is no passage in paragraph 121 which appears to have recognised a particular diligence by the applicants. By stating in that paragraph that, even if there were wrongful conduct on the part of the Community institutions, that alleged wrongful conduct could not be regarded as being the determinant cause of the damage alleged by the applicants ‘given the diligence shown by the applicants’, the Court of First Instance refers, in my opinion, to the level of diligence of the applicants, without actually making any assessment of the exact diligence which they showed, that latter having been assessed in paragraph 122 of the judgment under appeal, the wording of which is repeated, as an intermediate conclusion, in paragraph 133 of that judgment.

109. For those reasons as a whole, I consider that the second part of the first ground of appeal, and therefore also that ground of appeal, should be dismissed.

110. It follows, in my opinion, that the appeal should be dismissed.

III – Costs

111. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. According to Article 69(2) of those rules, which applies to the appeal procedure pursuant to Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council and the Commission have applied in their pleadings for the applicants to be ordered to pay the costs and the latter must, in my view, be unsuccessful in their pleas, they should be ordered to pay the costs of the appeal.

IV – Conclusion

112. Having regard to the foregoing considerations, I propose that the Court should:

(1) dismiss the appeal;

(2) order Trubowest Handel GmbH and Viktor Makarov to pay the costs.