CELEX: C1999/071/65
Language: en
Date: 1999-03-13 00:00:00
Title: Action brought on 4 January 1999 by T. Port GmbH & Co. KG against the Council of the European Union (Case T-2/99)

C 71/34              EN               Official Journal of the European Communities                                    13.3.1999
Action brought on 4 January 1999 by T. Port GmbH &               since the beginning of this century, states that it has been
Co. KG against the Commission of the European                    recognised since 1 July 1993 as a Category A operator. It
                       Communities                               also states that, since 1995, it has had import contacts
                       (Case T-1/99)                             with banana producers in Costa Rica.
                      (1999/C 71/64)
                                                                 In its claim, it seeks compensation for the damage it
              (Language of the case: German)                     claims to have suffered through having to pay the cost of
                                                                 the export licences as a condition for importing bananas
                                                                 from Costa Rica. The judgment of the Court of Justice
An action against the Commission of the European                 cited above clearly shows, in its submission, that the
Communities was brought before the Court of First                annulled article infringed the general prohibition of
Instance of the European Communities on 4 January 1999           discrimination and Article 40(3) of the EC Treaty. The
by T. Port GmbH & Co. KG, whose registered office is in          infringement of the principle of equality and the
Hamburg, represented by Gert Meier, Rechtsanwalt,                discrimination against Category A operators was carried
Jakordenstraûe 10, Köln.                                         out arbitrarily and for ulterior motives (financial aid).
                                                                 Those legal infringements caused damage to the applicant
The applicant claims that the Court should:                      arising in the following ways: It was obliged to fulfil
                                                                 acceptance obligations towards its producer in Costa Rica.
                                                                 In order to obtain import licences for those bananas and
1. require the Commission to pay the applicant damages           market them in the Community, it had to prove to the
    of DM 828 337.10 in respect of its loss suffered             competent German authority, when applying for the
    through having to buy export licences in Costa Rica in       import licences, that it held the corresponding export
    order to be able to use its rights as a Category A           licences. In order to acquire the licences, the applicant
    operator to import bananas into the Community and            incurred the expenditure referred to in its claims.
    market third-country bananas from Costa Rica in
    Germany;
                                                                 (1) Commission Regulation (EC) No 478/95 of 1 March 1995 on
                                                                     additional rules for the application of Council Regulation
2. require the Commission to pay the applicant damages               (EEC) No 404/93 as regards the tariff quota arrangements for
    of DM 126 356.80 in respect of its loss suffered                 imports of bananas into the Community and amending
    through having to use external credits in order to               Regulation (EEC) No 1442/93 (OJ L 49, 4.3.1995, p. 13).
    finance the expenses incurred in respect of the export       (2) Council Regulation (EEC) No 404/93 of 13 February 1993 on
    licences;                                                        the common organisation of the market in bananas (OJ L 47,
                                                                     25.2.1993, p. 1).
                                                                 (3) Delivered on 10 March 1998.
3. order interest of 4 % on the applicant's claims for
    damages, as from the commencement of proceedings;
4. order the Commission to pay the costs.
Pleas in law and main arguments adduced in support:              Action brought on 4 January 1999 by T. Port GmbH &
                                                                      Co. KG against the Council of the European Union
In 1994, in the context of the GATT, the Community                                        (Case T-2/99)
concluded the so-called Framework Agreement on
bananas with Colombia, Costa Rica, Nicaragua and                                         (1999/C 71/65)
Venezuela.
                                                                                (Language of the case: German)
By Regulation (EC) No 478/95 (1), made pursuant to
Article 20 of Regulation (EEC) No 404/93 (2), the
necessary measures for implementing the Framework
Agreement were to be finally adopted.                            An action against the Council of the European Union was
                                                                 brought before the Court of First Instance of the European
                                                                 Communities on 4 January 1999 by T. Port GmbH & Co.
By the judgment of the Court of Justice in Joined Cases          KG, whose registered office is in Hamburg, represented by
C-364/95 and C-365/95 T. Port GmbH & Co. v                       Gert Meier, Rechtsanwalt, Jakordenstraûe 10, Köln.
Hauptzollamt Hamburg-Jonas [1998] ECR I-1023 (3),
Regulation (EC) No 478/95 was declared invalid to the
extent to which Article 3(2) thereof imposed only on             The applicant claims that the Court should:
Category A and C operators the obligation to obtain
export licences for bananas from Colombia, Costa Rica or
Nicaragua.
                                                                 1. order the Council to compensate the applicant for the
                                                                      loss which it suffered through having to buy or obtain
The applicant, which has been importing bananas from                  the use of import rights for bananas from Category A,
Latin America into Germany and marketing them there                   B or C operators in order to market third-country
 ---pagebreak--- 13.3.1999            EN                Official Journal of the European Communities                                     C 71/35
    bananas imported from Costa Rica and Colombia in              such third countries as were members of the GATT in the
    Germany;                                                      amount of 236 000 tonnes in fulfilment of the
                                                                  most-favoured nation obligation. By the penal levy rule
                                                                  under Article 18(2) of Regulation (EEC) No 404/93, the
2. order the Council to compensate the applicant for the          Council prevented the applicant from being able to make
    loss which it has suffered since 21 December 1996             use of the possibility of importing under Article 18 of
    through payment of customs duty on entry in respect           Regulation (EEC) No 1442/93. Although that rule came
    of the bananas imported from Costa Rica and                   into being on the recommendation of the Commission,
    Colombia and marketed by it in Germany;                       sole responsibility for legislative impropriety lay with the
                                                                  Council. As implementing legislator, the Commission was
3. order the Council to compensate the applicant for the          bound by the guidelines of the Council. Hence the sole
    loss which it has suffered since 21 January 1996              liability of the Council to pay compensation.
    through payment of interest as from commencement
    of proceedings of DM 324 294;                                 (1) Council Regulation (EEC) No 404/93 of 13 February 1993 on
                                                                      the common organisation of the market in bananas (OJ L 47,
                                                                      25.2.1993, p. 1).
4. order interest of 4 % on the applicant's claims for            (2) Commission Regulation (EEC) No 1442/93 of 10 June 1993
    damages, as from the commencement of proceedings;                 laying down detailed rules for the application of the
                                                                      arrangements for importing bananas into the Community (OJ
                                                                      L 142, 12.6.1993, p. 6).
5. order the Council to pay the costs of the dispute;             (3) Joined Cases C-364/95 and C-365/95 T. Port GmbH & Co. v
                                                                      Hauptzollamt Hamburg-Jonas [1998] ECR I-1023.
In the alternative:
5. order the Council to compensate the applicant for the
    above-mentioned losses suffered by it since
    8 September 1997;
                                                                  Action brought on 4 January 1999 by Banatrading GmbH
                                                                            against the Council of the European Union
Further in the alternative:                                                                 (Case T-3/99)
                                                                                           (1999/C 71/66)
6. order the Council to compensate the applicant for the
    above-mentioned losses suffered by it since
    25 September 1997.                                                           (Language of the case: German)
Pleas in law and main arguments adduced in support:               An action against the Council of the European Union was
                                                                  brought before the Court of First Instance of the European
                                                                  Communities on 4 January 1999 by Banatrading GmbH,
In support of its claims, the applicant states that it            whose registered office is in Hamburg, represented by
suffered loss through being obliged, on account of the            Gert Meier, Rechtsanwalt, Jakordenstraûe 10, Köln.
penal levy under Article 18(2) of Regulation (EEC)
No 404/93 (1) in conjunction with the quota system of
Article 18 et seq. of Regulation (EEC) No 404/93 and              The applicant claims that the Court should:
with Article 2 et seq. of Regulation (EEC) No 1442/93 (2),
to buy import licences for bananas from Costa Rica and
Colombia in order to be able to import bananas into the           1. order the Council to compensate the applicant for its
Community. However, as the Standing Appellate Body of                  loss suffered since 21 January 1996 through having to
the World Trade Organisation had determined on                         buy or obtain the use of import rights for bananas
25 September 1997, the applicant had the right to import               from Category A, B or C operators in order to market
bananas into the Community free of duty up to an annual                third-country bananas imported from Ecuador in
maximum of 236 000 tonnes.                                             Germany;
Costa Rica and Colombia were members of the GATT                  2. order the Council to compensate the applicant for its
before the market regulations came into force. Therefore,              loss suffered since 21 January 1996 through payment
in accordance with the first paragraph of Article 234 of               of customs duty on entry in respect of the bananas
the EC Treaty and the case-law of he Court of Justice (3),             imported from Ecuador and marketed by it in
Articles I.1 and XIII of the GATT, which was concluded                 Germany;
before the EEC treaty came into force, precluded the
application of Regulation (EEC) No 404/93.
                                                                  3. order the Council to compensate the applicant for its
                                                                       loss suffered since 21 January 1996 through not being
The infringements against Articles I.1 and XIII of the                 able to place the sums which it had to pay as a result
GATT, rendering the Council liable to pay compensation,                of the unlawful conduct of the Council on deposit at
lay in the failure to open a duty-free banana quota for                its bank;