ORDER OF THE COURT (Sixth Chamber)

20 January 2009 ( )

(Appeal – Non-contractual liability of the Commission – Certain and actual loss – Distortion of the clear sense of the facts and the evidence – Burden of proof)

In Case C‑374/07 P,

APPEAL under Article 56 of the Statute of the Court of Justice brought on 1 August 2007,

Mebrom NV, established in Rieme-Ertvelde (Belgium), represented by K. Van Maldegem and C. Mereu, avocats,

appellant,

the other party to the proceedings being:

Commission of the European Communities, represented by X. Lewis, acting as Agent, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Sixth Chamber),

composed of J.‑C. Bonichot (Rapporteur), President of Chamber, K. Schiemann and J. Makarczyk, Judges,

Advocate General: M. Poiares Maduro,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By its appeal, Mebrom NV (‘Mebrom’) applies to have set aside the judgment of the Court of First Instance of the European Communities of 22 May 2007 in Case T-198/05 Mebrom v Commission (‘the judgment under appeal’), by which that Court dismissed as unfounded its action seeking compensation for the damage it claims to have suffered as a result of the failure of the Commission of the European Communities to take the necessary measures to allow the appellant to import methyl bromide in January and February 2005.

Legal context

2 By Council Decision 88/540/EEC of 14 October 1988 concerning the conclusion of the Vienna Convention for the protection of the ozone layer and the Montreal Protocol on substances that deplete the ozone layer (OJ 1988 L 297, p. 8), the European Community became a party to the Vienna Convention of 22 March 1985 for the protection of the ozone layer and the Montreal Protocol of 16 September 1987 on substances that deplete the ozone layer.

3 In 1997, the parties to the Montreal Protocol agreed to reduce in stages the production and importation of methyl bromide and, from 1 January 2005, to prohibit the production and importation of that pesticide in developed countries other than for ‘critical uses’.

4 Under Decision IX/6 of the parties to the Montreal Protocol (‘Decision IX/6’), a use of methyl bromide is considered critical if the nominating party in respect of exemption determines, first, that the lack of availability of methyl bromide for the use concerned would result in a significant market disruption and, second, that there are no technically and economically feasible alternatives or substitutes available to the user that are acceptable from the standpoint of the environment and health and are suitable to the crops and circumstances referred to in the nomination.

5 Decision IX/6 requires, moreover, that the production and consumption of methyl bromide for critical uses should be permitted only if:

– all technically and economically feasible steps have been taken to minimise the critical use and any associated emission of methyl bromide;

– methyl bromide is not available in sufficient quantity and quality from existing stocks of banked or recycled methyl bromide, and

– it is demonstrated that an appropriate effort is being made to evaluate, market and secure national regulatory approval of alternatives and substitutes.

6 Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer (OJ 2000 L 244, p.1), as amended by Commission Regulation (EC) No 2077/2004 of 3 December 2004 (OJ 2004 L 359, p. 28) (‘Regulation No 2037/2000’), states in recital 4 in its preamble:

‘It is necessary for action to be taken at Community level to carry out the Community’s obligations under the Vienna Convention and the latest amendments and adjustments to the Montreal Protocol, in particular to phase out the production and the placing on the market of methyl bromide within the Community and to provide for a system for the licensing not only of imports but also of exports of ozone-depleting substances.’

7 Article 3(2)(i) of Regulation No 2037/2000 states:

‘Subject to paragraphs 5 to 10, each producer shall ensure that:

…

(d) it produces no methyl bromide after 31 December 2004.

…’

8 Article 3(2)(ii) of that regulation provides:

‘In the light of the proposals made by Member States, the Commission shall, in accordance with the procedure referred to in Article 18(2), apply the criteria set out in Decision IX/6 of the Parties, together with any other relevant criteria agreed by the Parties, in order to determine every year any critical uses for which the production, importation and use of methyl bromide may be permitted in the Community after 31 December 2004, the quantities and uses to be permitted and those users who may take advantage of the critical exemption. Such production and importation shall be allowed only if no adequate alternatives or recycled or reclaimed methyl bromide is available from any of the Parties.

…’

9 Article 4(2)(i) of the regulation provides:

‘Subject to paragraphs 4 and 5, each producer and importer shall ensure that:

...

(d) it does not place any methyl bromide on the market or use any for its own account after 31 December 2004.

…’

10 Article 4(2)(ii) of the same regulation states:

‘Subject to paragraph 4, the placing on the market and the use of methyl bromide by undertakings other than producers and importers shall be prohibited after 31 December 2005.’

11 Article 4(4)(i) of Regulation No 2037/2000 provides:

…

(b) paragraphs 1, 2 and 3 shall not apply to the placing on the market and use of controlled substances if:

…

– they are used to meet … the licensed requests for critical uses of those users identified as laid down in Article 3(2) …’

12 Article 6(1) of the regulation provides:

‘The release for free circulation in the Community … of controlled substances shall be subject to the presentation of an import licence. Such licences shall be issued by the Commission after verification of compliance with Articles 6, 7, 8 and 13 …’

13 Article 7 of the regulation states:

‘The release for free circulation in the Community of controlled substances imported from third countries shall be subject to quantitative limits. Those limits shall be determined and quotas allocated to undertakings for the period 1 January to 31 December 1999 and for each 12-month period thereafter in accordance with the procedure referred to in Article 18(2). They shall be allocated only:

(a) for controlled substances of groups VI and VIII as referred to in Annex I;

(b) for controlled substances if they are used for essential or critical uses or for quarantine and preshipment applications;

…’

14 Group VI of Annex I to the regulation refers to methyl bromide.

15 Point 1 of the Notice to Importers in the European Union in 2005 of controlled substances that deplete the ozone layer, regarding Regulation (EC) No 2037/2000 of the European Parliament and of the Council on substances that deplete the ozone layer (OJ 2004 C 187, p. 11), states:

‘This Notice is addressed to undertakings that intend to import the following substances into the European Community from sources outside the European Community from 1 January 2005 to 31 December 2005.

…

Group VI: methyl bromide

…’

16 Point VIII of that Notice states:

‘Enterprises with a quota in 2004 should make a declaration by completing and submitting the relevant form(s) on [internet] page …’

Background to the dispute

17 Until 31 December 2004, eight importers, including Mebrom, were entitled to apply to the Commission for import licences for methyl bromide and secure the right to import a quota calculated on the basis of their market share in 1991.

18 As from 1 January 2005, Regulation No 2037/2000 prohibited the production and importation of that pesticide other than for critical uses.

19 In that context, the Commission modified the arrangements for allocating import licences. The Commission considers that, from that date, only fumigators may apply for methyl bromide to be imported and obtain for that purpose user licences, further to which importers obtain, if necessary, the corresponding import licences. That precludes an importer from itself having, in whatever capacity, an import quota.

20 From December 2003, the Commission had also decided to modify the internet site by which undertakings submitted their requests for import licences for methyl bromide (‘the ODS site’) in order to adapt it to these various developments. Those changes were completed on 14 February 2005.

21 In the notice to importers referred to in paragraph 15 of the present order, the Commission had, furthermore, stated that undertakings with a quota for 2004 were to make a declaration by submitting the relevant forms on the ODS site.

22 In August 2004, Mebrom submitted to the Commission a declaration seeking a methyl bromide quota for critical uses for 2005.

23 On 10 December 2004, the Commission sent an email to all the users of the ODS site stating that ‘[t]he quota for 2005 [would] be available on [its] website … on 13 December 2004’. The Commission also stated that the ‘import decision’ was being prepared and would be notified to each importer as soon as it had been adopted. It made clear that applications for import licences needed for the beginning of 2005 could be submitted via the ODS site from 13 December 2004 and that they should reach the Commission by 17 December 2004 at the latest, so that they could be processed before the end of the year.

24 In December 2004, Mebrom informed the Commission of its wish to import methyl bromide in January 2005 and of the impossibility to submit its application via the ODS site. On 11 January 2005, Mebrom informed the Commission that its situation was becoming critical since it was unable to meet its customers’ requests. The Commission replied that the adaptation of the ODS site was proving to be more difficult than expected and that it would not be completed before 24 January 2005 at the earliest.

25 On 17 February 2005, the Commission informed Mebrom of its registration on the ODS site and, on 21 February 2005, Mebrom obtained a licence to import methyl bromide for critical uses for two customers holding user licences granted by the Commission on 18 February.

The application before the Court of First Instance and the judgment under appeal

26 By application lodged on 13 May 2005, Mebrom applied to the Court of First Instance for compensation for the damage resulting from the loss of profit on sales of methyl bromide not made in January and February 2005.

27 By the judgment under appeal, the Court of First Instance dismissed the application on the ground that the appellant had failed to establish the existence of the damage that it claimed to have suffered.

28 First, the Court held that the existence of that damage could not be established by reference to sales in January and February 2004 in so far as the body of legal rules and the practice of allocating import licences for methyl bromide had significantly changed on 1 January 2005. It added that the sales figures for January and February 2004 provided by Mebrom were, moreover, on their own only statistics that were open to interpretation and that they did not, therefore, have any probative value.

29 Second, the Court held that the other evidence provided by Mebrom was insufficient to establish the existence of actual damage specifically suffered.

30 The Court held that the results of the questionnaires sent by Mebrom to its customers did not constitute proof of actual intentions to purchase specific quantities of methyl bromide in January and February 2005.

31 The Court in particular emphasised that those results had been submitted after February 2005 and that none of the undertakings questioned had indicated that they wished to purchase a specific quantity of methyl bromide from Mebrom during that period, with the exception, however, of undertaking G. The Court emphasised that certain of those undertakings approached, in March 2005, importers other than Mebrom in order to purchase the pesticide.

32 The Court also held that Mebrom had failed to establish that January and February were the peak season for the use of methyl bromide and that the losses suffered during that period could not be made up in March. The Court also held that the fact that Mebrom’s methyl bromide imports during the first quarter of 2005 were not significantly lower than in the first quarters of 2003 and 2004 seemed to indicate that it was possible to make them up.

33 The Court further held that the grant of an import licence required that the relevant undertaking be registered on the ODS site and that it did not have stocks of methyl bromide. The Court held that undertaking G had not established that it had been impossible for it to become registered on the ODS site in January and February 2005 and that, furthermore, Mebrom had not shown that there were no remaining stocks available to its customers during that period.

34 The Court next held that Mebrom had not provided any evidence that specific requests for methyl bromide had been made by its customers and that it had also failed to show that such sales had been impossible due to the Commission’s delay in adapting the ODS site and that they could not have been made up in March 2005.

35 The Court added that the calculation of damage put forward by Mebrom did not make it possible for the damage to be correctly assessed, and it rejected, as being out of time, the information presented by Mebrom on that point at the hearing.

36 The Court finally held that it was inappropriate to grant Mebrom’s alternative claim seeking a ruling that the Commission compensate the loss suffered and an order that the parties produce to the Court, within a reasonable time, the data allowing the loss to be assessed.

37 The Court, therefore, dismissed Mebrom’s action as unfounded and ordered it to pay the costs.

Forms of order sought

38 Mebrom claims that the Court should:

– declare the appeal admissible and well founded;

– set aside the judgment under appeal;

– declare the requests it made at first instance admissible and well founded;

– grant the request for damages made at first instance or, in the alternative, refer the case back to the Court of First Instance to rule on the merits; and

– order the Commission to pay the costs of both sets of proceedings.

39 The Commission contends that the Court should:

– dismiss the appeal, and

– order the appellant to pay the costs.

The appeal

40 Under Article 119 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss it.

41 The appellant raises six pleas in law. The first plea alleges that the Court of First Instance distorted the clear sense of the evidence produced before it and the facts of the case. The second plea alleges that the Court of First Instance erred in law by holding that the appellant had not established that the damage it alleged was actual. The third plea alleges that the Court of First Instance placed a disproportionate and unjustified burden of proof on the appellant. The fourth plea alleges that the Court of First Instance infringed the obligation to state reasons. The fifth plea alleges that the Court of First Instance infringed Article 48(1) of its Rules of Procedure by rejecting as inadmissible the new method to calculate damage suggested by the appellant at the hearing. The sixth plea alleges that the Court of First Instance infringed the rights of the defence, the right to a fair hearing and the principle of equality of arms by placing, in particular, an unjustified burden of proof on the appellant.

42 The Commission contends that the appeal is, in its entirety, clearly unfounded and that it should be dismissed.

The first plea

Arguments of the parties

43 The appellant claims primarily, by this plea, that it was in disregard of the facts of the case that the Court of First Instance held that the appellant’s customer’s intentions to purchase and, consequently, its loss of profit, had not been established. The appellant contends that the Court of First Instance distorted the clear sense of the evidence and the facts of the case, leading it to err in holding that the appellant had not suffered any loss. This plea is divided into five parts.

44 Mebrom claims, first, that the Court of First Instance distorted, in paragraphs 61 to 68 of the judgment under appeal, the clear sense of the documents which the appellant had provided to it and which, since they came from its customers, showed the existence of genuine intentions to purchase methyl bromide in January and February 2005. The appellant emphasises, in particular, that the Court of First Instance erred in law by holding, in paragraph 66 of the judgment under appeal, that it was not shown that there were no remaining stocks available to those undertakings during the period in question.

45 Mebrom claims, second, that the Court of First Instance distorted, in paragraphs 59, 61 to 64, 67 and 68 of the judgment under appeal, the clear sense of the evidence submitted by holding that the appellant had not established the seasonal nature of the use of methyl bromide and, therefore, the fact that the loss of sales in January and February 2005 could not have been made up in March 2005. The appellant states that that pesticide is a fumigant which can be applied only before planting and, therefore, only at specific periods of the year, depending on the species. The appellant adds that it was apparent from Annex 9 to its application at first instance that sales in March 2005 were lower than those of March 2004, which showed that it had not been possible to make up in March 2005 the loss of profit sustained in January and February 2005.

46 Mebrom claims, third, that the Court of First Instance erred in law by holding, at paragraph 58 of the judgment under appeal, that the sales figures for January and February 2004 were statistics that were open to interpretation and had only an illustrative value. The appellant maintains that it produced evidence of its own sales, certified by its own accounts.

47 Mebrom contends, fourth, that the Court of First Instance erred in law by holding, first, in paragraph 56 of the judgment under appeal, that a comparison between the sales figures for 2004 and 2005 was irrelevant due to the changes to the legal framework as from 1 January 2005 and, second, in paragraph 64 of that judgment, that the non-seasonal nature of the sale of methyl bromide could be deduced from an analysis of Mebrom’s imports alone of that pesticide in 2003, 2004 and 2005.

48 Fifth and finally, Mebrom claims that the Court of First Instance distorted the clear sense of the facts and evidence by not evaluating them overall and together and, in its reply, states that the Commission cannot submit that the alleged loss of profit should have been proved by the existence of commercial contracts.

49 The Commission contends that the Court of First Instance did not distort the clear sense of the facts and evidence. It maintains that Mebrom should have proved the alleged loss of profit by the existence of definite commercial arrangements with its customers. It submits, in particular, that the appellant has not shown that stocks were exhausted during the period in question, since the documents submitted provide no precise information on this point.

50 It claims also that the Court of First Instance did not confuse, in paragraph 64 of the judgment under appeal, sales figures with import figures and adds that the Court of First Instance did not contradict itself, in paragraphs 56 and 64 of the judgment, but that it deals there with two different issues. In paragraph 56 of the judgment under appeal, the Court of First Instance examined whether Mebrom had produced adequate evidence of actual damage, whereas in paragraph 64 of the judgment the question examined was whether losses allegedly incurred in January and February 2005 could have been made up in March 2005.

51 According to the Commission, finally, Mebrom does not show how an overall examination of the evidence by the Court of First Instance would have demonstrated the existence of the damage that the appellant claims to have suffered.

Findings of the Court

52 By the first, third and fifth parts of the first plea, which may be examined together, Mebrom claims that the Court of First Instance distorted the clear sense of the evidence, leading it to hold erroneously that the appellant had not shown that its customers had firm intentions to purchase methyl bromide in January and February 2005.

53 In that regard, it must be recalled that an appeal is to be limited to points of law. It is settled case-law that the Court of First Instance therefore has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in an appeal (see to that effect Case C-470/00 P Parliament v Ripa di Meana andOthers [2004] ECR I-4167, paragraph 40).

54 In the present case it does not appear that the Court of First Instance distorted the clear sense of the documents submitted by Mebrom as evidence. With regard to Mebrom’s sales figures for January and February 2004, referred to by the Court of First Instance in paragraph 58 of the judgment under appeal, it should first be recalled that the Court of First Instance clearly stated, in paragraph 56 of the judgment, that they were not relevant to assessing the loss of profit alleged by the appellant. Further, it is not apparent from the case-file that those figures were distorted by the Court of First Instance. Finally, it is also not apparent from the case-file that the Court of First Instance distorted the clear sense of the various pieces of evidence submitted by failing to assess their probative value overall.

55 Accordingly, the first, third and fifth parts of the first plea are manifestly unfounded.

56 By the second and fourth parts of that plea, which may be examined together, Mebrom contends that the Court of First Instance distorted the clear sense of the facts and evidence and, therefore, erred in holding that Mebrom had failed to show that the sales not made by it in January and February 2005 could not have been made up in March 2005.

57 However, it must be recalled that, according to established case-law, complaints directed against grounds included in a judgment of the Court of First Instance purely for the sake of completeness cannot lead to the judgment being set aside and are therefore nugatory (see inter alia the order of 23 February 2006 in Case C‑171/05 P Piau v Commission, paragraph 86).

58 In the present case, it is apparent from paragraphs 54 to 57, 59 to 61, 65 and 66 of the judgment under appeal, that the appellant has not adduced evidence of loss of sales of methyl bromide in January and February 2005.

59 In those circumstances, the question whether those losses could have been made up in March 2005 is included purely for the sake of completeness.

60 Accordingly, the second and fourth parts of the first plea are clearly unfounded.

61 The first plea must, therefore, be rejected in its entirety as clearly unfounded.

The second plea

Arguments of the parties

62 The second plea raised by the appellant alleges that the Court of First Instance erred in law by holding that the appellant had not established that the damage alleged was actual. This plea is divided into three parts.

63 Mebrom claims, first, that the Court of First Instance erred in law by ruling, in paragraphs 54 to 58, 61 to 64 and 68 to 71 of the judgment under appeal, on the existence of damage on the basis of factors related only to the extent of that damage. The appellant claims that that is in particular the case with regard to the Court’s assessment of the existence of damage resulting from the loss of profit on the sales of methyl bromide not made in January and February 2005 to undertaking G. The appellant next considers that the Court of First Instance confused, in paragraphs 56, 59 and 68 of that judgment, the condition relating to the existence of damage with that relating to a causal link. Finally, Mebrom claims that the Court of First Instance erred in law by holding, in paragraphs 59, 63, 64 and 68 of that judgment, that it was for the appellant to show that the drop in its sales in January and February 2005 could not have been made up subsequently in March 2005. Mebrom considers that the losses suffered were definitive at the end of February 2005 and that, in those circumstances, the level of sales of the pesticide in March 2005 had no bearing on the analysis of the damage suffered.

64 The Commission contends that these various arguments essentially reiterate those already invoked in the first plea. It submits that the Court of First Instance did not confuse the question of the existence of damage with the examination of the condition relating to a causal link and that the Court was fully entitled to verify whether the alleged drop in sales in January and February 2005 could not have been made up later.

Findings of the Court

65 With regard to the first part of the second plea, it is apparent from paragraphs 65 and 66 of the judgment under appeal that the Court of First Instance relied principally on the fact that undertaking G was not registered on the ODS site in January and February 2005, and that it therefore did not satisfy one of the conditions required to purchase methyl bromide from Mebrom during that period, in order to hold that damage resulting from the loss of profit owing to sales not being made to that undertaking had not been shown to exist.

66 As to the remainder, it is sufficient to note that the appellant merely calls into question the assessment of the probative value of the evidence which, as was recalled in paragraph 53 above, is beyond the review of the Court in an appeal.

67 It follows that the first part of the second plea is in part clearly unfounded and in part clearly inadmissible.

68 Concerning the second part of this plea, Mebrom does not make clear how the Court of First Instance confused, in paragraphs 56, 59 and 68 of the judgment under appeal, the question of the existence of the damage with that of the causal link.

69 In any event, those paragraphs of the judgment under appeal do not refer to the causal link between the Commission conduct complained of and the damage allegedly suffered.

70 In paragraph 56 of the judgment under appeal, the Court of First Instance indicates that the comparison between the sales figures for 2004 and those for 2005 did not constitute evidence relevant to establishing that the alleged damage was actual and, in paragraph 59 of that judgment, that the appellant was required to provide it with proof of actual damage specifically suffered in the course of its business.

71 It is true that, in paragraph 68 of the judgment under appeal, the Court of First Instance mentioned, in particular, that the appellant had not established that sales were rendered impossible ‘as a result of the conduct on the part of the Commission complained of’. It is apparent, however, from its reasoning as a whole, and in particular from paragraph 33 of that judgment in which it recalls the three conditions which must be met for the liability of the institutions to be incurred, as well as from the arguments in paragraphs 53 to 68 of that judgment, that the Court of First Instance exclusively ruled therein on whether or not damage had been suffered by the appellant.

72 Accordingly, the second part of the second plea is clearly unfounded.

73 With regard to the third part of that plea, according to which the Court of First Instance erred in law by requiring Mebrom to show that the sales allegedly lost in January and February 2005 could not have been made up in March 2005, it is sufficient to recall that, as was pointed out in paragraph 59 above, that ground is included purely for the sake of completeness. In consequence, the complaints directed against it cannot lead to the judgment under appeal being set aside and are, therefore, nugatory (see the order in Piau v Commission, paragraph 86).

74 The third part of the second plea is, accordingly, clearly unfounded.

75 Accordingly, the second plea is in part clearly inadmissible and in part clearly unfounded.

The third plea

76 By its third plea, Mebrom claims that the Court of First Instance erred in law by requiring it to demonstrate ‘negative facts’. The appellant claims that the Court of First Instance, in paragraphs 59 to 64 of the judgment under appeal, required it, first, to demonstrate that it would have been impossible for it to make up, in March 2005, the drop in its sales in the previous two months and, secondly, that its customers had not turned to its competitors to obtain supplies in the course of that month. The Court of First Instance is also alleged to have required it, in paragraphs 65 and 66 of that judgment, to demonstrate that its customers and, in particular, undertaking G, were unable to register on the ODS site in January and February 2005 and that they did not have any remaining stock of methyl bromide during that period.

77 The appellant adds that the Court of First Instance agreed, by contrast, in paragraphs 62 to 64 and 66 of the judgment under appeal, to take into account the Commission’s mere allegations according to which, in particular, all fumigators had the opportunity to become registered on the ODS site in January and February 2005 and contends that, by so doing, the Court of First Instance infringed Article 48(2) of its Rules of Procedure since that evidence was presented for the first time at the hearing.

78 The appellant also claims that the Court of First Instance erred in law by requiring it to provide evidence allowing the existence of damage to be shown with absolute certainty.

79 The Commission submits that this plea is clearly unfounded and claims in that respect that it was for Mebrom to rebut the evidence it had presented before the Court of First Instance, which it was unable to do.

Findings of the Court

80 In accordance with established case-law, it is for the appellant to prove that the damage for which compensation is sought is actual and certain (see Case C‑243/05 P Agraz and Others v Commission [2006] ECR I‑10833, paragraph 27).

81 With regard, first, to the question whether Mebrom could have made up in March 2005 the sales which, it claims, had not been made in the previous two months and to the burden of proof concerning this which is alleged to have been wrongly imposed on it, it suffices to state that, in accordance with the point made in paragraph 59 above, that ground was included purely for the sake of completeness, such that the arguments raised against it are nugatory and, therefore, clearly unfounded.

82 Concerning, second, the question whether the appellant’s customers turned to its competitors in March 2005, and the burden of proof concerning this which is alleged to have been also wrongly imposed on it, it suffices to note that the Court of First Instance stated, in paragraph 62 of the judgment under appeal, that it was clear from the information provided by the Commission that two of Mebrom’s customers, undertakings PO and T, had in March 2005 approached importers other than Mebrom in order to purchase methyl bromide. The Court of First Instance did not, therefore, impose an unjustified and disproportionate burden of proof on Mebrom in that regard.

83 With respect, third, to the alleged impossibility, for undertaking G, to register on the ODS site in January and February 2005, the Court of First Instance stated, in paragraph 66 of the judgment under appeal, that Mebrom had not substantiated that claim. Furthermore, the Court of First Instance stated, in paragraph 62 of that judgment, that one of Mebrom’s customers, undertaking B, had obtained a licence on 18 February 2005. In those circumstances, irrespective of the admissibility of the information provided by the Commission at the hearing, according to which such registration was open to all fumigators at that time, nor does it seem that the Court of First Instance imposed an unjustified and disproportionate burden of proof on the appellant.

84 It follows that the Court of First Instance did not infringe the rules governing the taking of evidence and that the third plea is, in its entirety, clearly unfounded.

The fourth plea

Arguments of the parties

85 By its fourth plea, the appellant claims that the judgment of the Court of First Instance is marred by a contradiction in reasoning, in particular, between paragraphs 56 and 64 and paragraph 75, since, on the one hand, the Court rejects the appellant’s alternative request for an order that the parties produce the evidence necessary to evaluate the damage suffered and, on the other hand, it finds that the appellant has not established the existence and extent of that damage.

86 The Commission considers that Mebrom confuses the question of the definite and actual nature of the damage with the amount of that damage.

Findings of the Court

87 The question whether the grounds of a judgment are inadequate or contradictory is a question of law which is amenable, as such, to review on appeal (see to that effect Case C-401/96 P Somaco v Commission [1998] ECR I-2587, paragraph 53).

88 There is, however, no contradiction between the two parts in question of the judgment under appeal, since the questions of the existence of damage and of its extent are entirely separate. However, it is apparent from simply reading the judgment under appeal that paragraphs 56 and 64 thereof relate to the question of the existence of the damage that the appellant claims to have suffered, whereas paragraph 75 of that judgment concerns the alternative request seeking a subsequent calculation of the precise amount of that damage. Furthermore, contrary to what is alleged by Mebrom in its appeal, the Court of First Instance did not hold, in paragraphs 56 and 64 of the judgment under appeal, that the appellant had not established the existence of the damage suffered on the ground that it had not produced sufficient evidence of the extent of that damage. In paragraph 56 of that judgment, the Court of First Instance held that the existence of damage suffered in January and February 2005 could not be deduced from the mere comparison between Mebrom’s sales in January and February 2004 and those in the same months of 2005, whereas, in paragraph 64 of that judgment, the Court held that the appellant had failed to show that the sales not made in January and February 2005 could not have been made up in March of the same year.

89 It follows that the fourth plea is clearly unfounded.

The fifth plea

Arguments of the parties

90 By its fifth plea, the appellant claims that the Court of First Instance infringed Article 48(1) of its Rules of Procedure by holding, in paragraph 71 of the judgment under appeal, that the new method of calculating the damage presented by Mebrom at the hearing was to be regarded as inadmissible because out of time.

91 The Commission considers that this plea is clearly unfounded.

Findings of the Court

92 According to established case-law referred to above, the complaints directed against grounds included in a judgment of the Court of First Instance purely for the sake of completeness are nugatory (see to that effect the order in Piau v Commission, paragraph 86).

93 In the present case, the Court of First Instance rejected, as being out of time, the evidence presented by Mebrom at the hearing and intended to specify the amount of damage alleged.

94 It is apparent, however, from the very wording of the judgment under appeal, paragraph 69 of which starts with the words ‘for the sake of completeness’, that the Court of First Instance addressed that question, which could, moreover, be resolved only on condition that the very existence of damage had been acknowledged beforehand, only in order to dispose fully of the appellant’s case.

95 The grounds of the judgment under appeal concerning that question are, therefore, included purely for the sake of completeness.

96 It follows that the fifth plea is clearly unfounded.

The sixth plea

Arguments of the parties

97 By its sixth and final plea, Mebrom claims that the Court of First Instance infringed, in paragraphs 54 to 59 and 61 to 75 of the judgment under appeal, the rights of the defence, the right to a fair hearing and the principle of equality of arms by holding, in particular, in paragraph 66 of the judgment under appeal, that, according to observations made by the Commission, at the hearing, fumigators had the opportunity to register on the ODS site in January and February 2005. The Court of First Instance is alleged also to have infringed those principles by requiring Mebrom to provide evidence that it was impossible for undertaking G to register on that site at that time.

98 The Commission submits that the appellant puts forward only arguments already raised in the previous pleas.

Findings of the Court

99 It follows from Article 21 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see to that effect Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68).

100 The sixth plea, by which the appellant merely asserts that the Court of First Instance infringed the rights of the defence, the right to a fair hearing and the principle of equality of arms, by merely referring back to arguments put forward in another context, does not fulfil those requirements (see to that effect the order in Case C-51/95 P Unifruit Hellas v Commission [1997] ECR I-727, paragraph 33).

101 Accordingly, the sixth plea is clearly inadmissible.

102 As none of the pleas raised by the appellant in support of its appeal is capable of succeeding, the appeal must be dismissed.

Costs

103 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of 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. As the Commission has applied for costs and Mebrom has failed in its pleas, the latter must be ordered to pay the costs.

On those grounds, the Court (Sixth Chamber) hereby orders:

1. The appeal is dismissed.

2. Mebrom NV shall pay the costs.

[Signatures]