JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

2 July 2003

((Actions for damages – Common organisation of the markets – Bananas – Import scheme – Undertakings in the former GDR)) In Case T-99/98, Hameico Stuttgart GmbH, formerly A & B Fruchthandel GmbH, established in Stuttgart (Germany),Amhof Frucht GmbH, established in Schwabhausen (Germany),Hameico Dortmund GmbH, formerly Dessau-Bremer Frucht GmbH, established in Dortmund (Germany),Hameico Fruchthandelsgesellschaft mbH, formerly Bremen-Rostocker-Frucht GmbH, established in Rostock (Germany),Leipzig-Bremer Frucht GmbH, established in Leipzig (Germany),represented by G. Schohe, lawyer, with an address for service in Luxembourg, applicants, v Council of the European Union, represented by J.-P. Hix and A. Tanca, acting as Agents,andCommission of the European Communities, represented by K.-D. Borchardt, acting as Agent, assisted by A. von Bogdandy, with an address for service in Luxembourg, defendants, supported byKingdom of Spain, represented by R. Silva de Lapuerta, acting as Agent, with an address for service in Luxembourg, intervener, APPLICATION for compensation for the damage allegedly suffered by the applicants as a result of the application 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) and of Commission 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),



THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),



composed of: B. Vesterdorf, President, N.J. Forwood and H. Legal, Judges, Registrar: J. Plingers, Administrator, having regard to the written procedure and further to the hearing on 20 February 2002,

gives the following

Judgment

Background and legal framework of the dispute

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─ declare that the defendants must pay compensation for the damage which the applicants suffered or are suffering by reason of the application of Regulation No 404/93, and in particular Articles 17 to 19 and 21(2), and by reason of the application of Regulation No 1442/93;

─ require the parties to state, within a period to be laid down by the Court of First Instance, the amounts which they agree are payable, or, in the event that no agreement is reached, to submit to the Court of First Instance, within the same period, detailed claims;

─ reserve its decision on costs.

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─ dismiss the action;

─ order the applicants to pay the costs.

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─ Hameico Stuttgart GmbH (formerly A & B Fruchthandel GmbH) declared that it imported 5 091 760 kg of third-country bananas in 1991 and none in 1989, 1990 and 1992;

─ Amhof Frucht GmbH declared that it imported 3 798 463 kg of third-country bananas in 1992 and none in 1989, 1990 and 1991;

─ Hameico Dortmund GmbH (formerly Dessau-Bremer Frucht GmbH) declared that it imported 3 175 649 kg of third-country bananas in 1991 and none in 1989, 1990 and 1992;

─ Hameico Fruchthandelsgesellschaft mbH declared that it imported 4 901 724 kg of third-country bananas in 1991 and none in 1989, 1990 and 1992;

─ Leipzig-Bremer Frucht GmbH declared that it imported 11 903 757 kg of third-country bananas in 1991 and none in 1989, 1990 and 1992.

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─ none of the applicants may be regarded as the economic successor to the former State bodies or nationalised industries to which the planned and centralised economy of the former GDR had attributed the monopoly for importing and ripening bananas within the meaning of the judgment of the Court of First Instance in Case T-612/97 Cordis v Commission [1999] ECR II-2771, paragraphs 6 and 37;

─ the first applicant was incorporated in Bremen (FRG) by an act dated 16 February 1991 and entered on the companies register at Bremen on 12 March 1991; its registered office was transferred from Bremen to Dresden (former GDR) by a document dated 5 November 1991, which was entered on the register on 17 August 1992; it marketed bananas only in 1991;

─ the second applicant was incorporated in Bremen (FRG) by an act of 9 August 1991 and entered on the companies register at Bremen on 3 September 1991; its registered office was transferred from Bremen to Gotha (former GDR) by an act of 25 September 1991, entered on the register on 17 December 1991; it began marketing bananas only in December 1991;

─ the third applicant was incorporated in Dessau (former GDR) by an act dated 14 June 1990 and entered on the companies register on 29 June 1990; its registered office was first of all transferred from Dessau to Bremen (FRG) by a decision of the shareholders of 19 September 1994, then from Bremen to Dortmund (FRG) by a decision of the shareholders of 20 December 1995, entered on the companies register at Dortmund on 3 June 1996; it undertook activities entitling it to reference quantities from its incorporation, that is to say before German reunification;

─ the fourth applicant was incorporated in Bremen (FRG) by an act dated 15 June 1990 and entered on the companies register on 10 July 1990; its registered office was transferred from Bremen to Rostock (former GDR) by an act of 20 December 1990, entered on the register on 29 October 1991; it marketed bananas in Rostock from the time of its incorporation, that is to say before German reunification, in a joint venture with the State enterprise OGS of the Rostock district; before the end of 1990, the East German partner left the company, which then marketed bananas on its own;

─ the fifth applicant, with its registered office in Leipzig (former GDR), was incorporated by an act of 21 June 1990, which was entered on the companies register on 13 September 1990.

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─ the question does not arise for the first and second applicants, in so far as they became legal persons only after German reunification;

─ the last three applicants engaged in fruit retailing and banana ripening activities in various locations in the former GDR and, had they been established in the Community before 3 October 1990, it must be supposed that they could have claimed reference quantities for 1990.

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─ that the first and second applicants were incorporated after German reunification and in no circumstances can they therefore be regarded as third-country banana operators established in the former GDR prior to German reunification;

─ that the other applicants merely state that they had engaged in activities giving rise to an entitlement to reference quantities prior to German reunification without adducing any evidence, despite a request by the Court of First Instance;

─ that, for the rest, although they were expressly requested to do so by the Court of First Instance in written questions and during the hearing, the applicants have provided no figures indicating the fact, nature or extent of the damage that each of them suffered personally as a result of the entry into force of the COM, in particular in their capacity as GDR operators.

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On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

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Vesterdorf Forwood Legal

H. Jung B. Vesterdorf