Keywords

Summary



Keywords

1. Non-contractual liability – Unlawfulness of the Commission’s decision rejecting an application for transitional measures – Damage – Compensation – Operators unlawfully denied import licences – Reinstatement of the financial situation – Assessment of loss by reference to the exchange value of the licences

(Art. 288 EC; Council Regulation No 404/93, Art. 30)

2. Non-contractual liability – Damage – Compensation – Account taken of the effects of inflation – Right to monetary revaluation – End date for the monetary revaluation – Right to default interest – Start date

(Art. 288 EC)

Summary

1. Compensation for loss in the context of the non-contractual liability of the Community must in principle allow the person suffering loss to be placed in the position, financially, in which he would have been if the institution concerned had refrained from the unlawful conduct which caused the loss.

2. Where the loss lies in the allocation of a number of licences to import third-country and non-traditional ACP bananas which is smaller than the operator concerned would have received if the Commission had not unlawfully refused to adopt transitional measures under Article 30 of Regulation No 404/93 on the common organisation of the market in bananas, determining that loss involves, first of all, determining the number of additional import licences which should have been allocated to that operator and, secondly, the reinstatement of the financial situation in which he would have found himself if he had received and made use of those licences.

In that respect, given that when that operator should have received additional import licences, those licences could not only be used to import third-country or non-traditional ACP bananas into the Community, but could also be transferred to other operators and were, as a matter of fact, traded on the market, and even though it is possible that that operator would have found himself in a different financial situation depending on how he actually chose to use the licences, it is permissible to use the exchange value of the licences in order to assess the loss. That exchange value represents a strictly commercial figure, determined by the economic operators concerned in accordance with the laws of supply and demand and intended to reflect, approximately at least, the economic value of the licences traded.

(see paras 72, 97, 99, 101, 107, 109, 116-117)

3. Where the conditions for non-contractual liability are met, the adverse consequences of a lapse of time between the occurrence of the actionable event and the date of payment of compensation cannot be disregarded inasmuch as the effects of inflation must be taken into account.

The end date for the monetary revaluation must be assessed at the same time as that from which default interest is to be calculated. The amount of compensation due must be subject to default interest from the date of the judgment establishing the obligation to make good the damage. Nevertheless, in so far as neither is the amount of the principal sum certain nor can it be ascertained on the basis of established objective factors at the date of that judgment, default interest cannot run from that date but only, in the event of delay and until payment in full, from the date of the judgment regarding the payment of compensation.

(see paras 138, 142-144)