CELEX: 62001CC0122
Language: en
Date: 2002-10-24
Title: Opinion of Mr Advocate General Léger delivered on 24 October 2002. # T. Port GmbH & Co. KG v Commission of the European Communities. # Appeal - Bananas - Common organisation of the markets - Regulation (EC) No 478/95 - Export licence scheme - Action for damages - Proof of damage and causal link. # Case C-122/01 P.

OPINION OF ADVOCATE GENERALLÉGER delivered on 24 October 2002 (1)
         Case C-122/01 P T. Port GmbH & Co. KGvCommission of the European Communities
            ((Appeal – Bananas – Common organisation of the markets – Export licence scheme – Action for damages – Proof of damage and causal link – Pleas directed against grounds included only for the sake of completeness – Rejection – Plea alleging incorrect assessment of the evidence – Inadmissibility))
            
      
         
      1.  This appeal is brought by T. Port GmbH & Co. KG against the judgment of the Court of First Instance of the European Communities
      in Case T-1/99  
       T. Port  v  
       Commission . 
      
         			(2)
         		  By that judgment the Court dismissed the appellant's application for compensation for the loss it allegedly suffered as
      a result of the introduction of the export licence system by Regulation (EC) No 478/95. 
      
         			(3)
         		 I ─ Legislative background
      
      2.  The legislative background to the case can be summarised as follows. 
      
         			(4)
         		
      3.  Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas 
      
         			(5)
         		 instituted a common system of trade with third countries.  The first paragraph of Article 17 of that regulation provides
      that any importation of bananas into the Community is to be subject to the submission of an import licence issued by the Member
      States.
      
      4.  Originally Article 18(1) of Regulation No 404/93 provided for a tariff quota of 2 million tonnes (net weight) to be opened
      each year for imports of third-country bananas from non-ACP States 
      
         			(6)
         		 and non-traditional imports of bananas from ACP States. 
      
         			(7)
         		  Under that quota, imports of third-country bananas were subject to a levy of ECU 100 per tonne and non-traditional ACP bananas
      to a zero duty.
      
      5.  Article 19(1) of Regulation No 404/93 subdivided the tariff quota opened as follows: 66.5% to the category of operators who
      had marketed third-country and/or non-traditional ACP bananas (category A), 30% to the category of operators who had marketed
      Community and/or traditional ACP bananas (category B) and 3.5% to the category of operators established in the Community who
      had started marketing bananas other than Community and/or traditional ACP bananas from 1992 (category C).
      
      6.  That system was reappraised in the context of the General Agreement on Tariffs and Trade (GATT).
      
      7.  In March 1994 the European Community reached an agreement, known as the Framework Agreement on Bananas, 
      
         			(8)
         		 with several Latin American countries, namely the Republics of Colombia, Costa Rica, Nicaragua and Venezuela.  That agreement
      set the basic overall tariff quota at 2 100 000 tonnes for 1994 and at 2 200 000 tonnes for 1995 and subsequent years and
      laid down the percentages of the quota allocated to Colombia, Costa Rica, Nicaragua and Venezuela.
      
      8.  Point 6 of the Framework Agreement provides that those countries  
      may deliver special export certificates for up to 70% of their quota and that those certificates constitute  
      a prerequisite for the issuance, by the Community, of certificates for the importation of bananas from said countries by Category
      A and Category C operators.  In addition, point 7 of the Framework Agreement fixes the in-quota customs duty at ECU 75 per tonne.
      
      9.  On 22 December 1994 the Council approved the Framework Agreement on behalf of the Community. 
      
         			(9)
         		  On 1 March 1995 the Commission adopted Regulation (EC) No 478/95, which contains the measures necessary for implementation
      of that agreement.  Article 3(2) of that regulation provides that for goods originating in Colombia, Costa Rica or Nicaragua,
      the application for an import licence of Category A or C must be accompanied by an export licence issued by the competent
      authorities of those countries.
      
      10.  On 10 March 1998 the Court of Justice partially annulled Decision 94/800 on the grounds that by exempting Category B operators
      from the export-licence system that decision infringed the principle of non-discrimination laid down in Article 40(3) of the
      EC Treaty (now, after amendment, Article 34(2) EC). 
      
         			(10)
         		  The Court of Justice also declared Regulation No 478/95 invalid on the same grounds. 
      
         			(11)
         		 II ─ Procedure before the Court of First Instance
      
      11.  By application lodged at the Registry of the Court of First Instance on 4 January 1999 the appellant brought an action for
      damages on the basis of Article 178 and the second paragraph of Article 215 of the EC Treaty (now Article 235 EC and the second
      paragraph of Article 288 EC).
      
      12.  As a Category A operator it sought compensation for loss which it allegedly suffered as a result of the obligation imposed
      by Regulation No 478/95 to purchase export licences in order to import and market bananas originating in Costa Rica.
      
      13.  The appellant claimed that the Court of First Instance should order the Community to pay it, on the one hand, the sum of DEM
      828 337.10 in respect of the price of the export licences which it was required to purchase and, on the other hand, the sum
      of DEM 126 356.80 in respect of the cost of borrowing money in order to purchase those licences.
       III ─ The judgment under appeal
      
      14.  In the judgment under appeal, the Court of First Instance dismissed the application on the following grounds: 
      
      42
         
       The Community's non-contractual liability under the second paragraph of Article 215 of the EC Treaty depends on the coincidence
      of a set of conditions as regards the unlawfulness of the acts alleged against the Community institutions, the fact of damage
      and a causal link between the conduct of the institution and the wrongful act complained of ... . 
      
      
      43
         
       In the present case, the conditions relating to actual damage and to a causal link may appropriately be considered together.
      ...
      
      
      55
         
       According to settled case-law, it is for the party seeking to establish the Community's liability to adduce conclusive proof
      as to the existence or extent of the damage he alleges ... . 
      
      
      56
         
       In this instance, the damage alleged has two components.  First, it consists of the costs of the applicant's purchase of licences
      to export bananas from Costa Rica.  Second, it consists of the bank interest paid on the sums drawn on a line of credit made
      available to the applicant by its bank. 
      
      
      57
         
       With regard to the first head of damage, the applicant has produced a certified statement of its auditor in which the latter
      declares that  
      from 1996 to 1998, [it] disbursed DEM 828 337.10 on purchasing export licences for bananas from Costa Rica.  It is clear from its pleadings and from what it said at the hearing that in the applicant's view the expenditure mentioned
      in that certified statement in itself constitutes the loss it has suffered and that there is no point in considering what
      effect that expenditure actually had on the profitability of the corresponding commercial transactions.  The applicant submits
      that it is not, therefore, incumbent on it to supply any further particulars or evidence. 
      
      
      58
         
       That approach cannot be accepted, for several reasons. 
      
      
      59
         
       In the first place, there is nothing in the certified statement referred to which makes it possible to determine whether the
      sum really corresponds to the cost of purchasing export licences. 
      
      
      60
         
       In the second place, even on the assumption that that sum is unarguably genuine, it has by no means been established that
      the applicant itself actually used all the export licences corresponding to that sum in order to import bananas into the Community.
       That evidence is indispensable since, as the Commission has pointed out and the applicant has not denied, the export licences
      held by one operator could, in practice, be sold to another operator, or indeed be exchanged for import licences. 
      
      
      61
         
       The two certified statements of the auditor, annexed to the reply, are not in this regard conclusive.  They simply state that
      in 1996, 1997 and 1998 respectively the applicant paid DEM 767 225.38, DEM 489 029.36 and DEM 1 419.11 by way of  
      import duties on imports of bananas from Costa Rica.  In the absence of any information regarding the quantities of bananas to which those total amounts relate, or the quantities
      to which the abovementioned amount of DEM 828 337.10 relates, or the parameters used by the auditor in arriving at those sums,
      it cannot be established with the requisite certainty that the quantities of bananas imported from Costa Rica into the Community
      by the applicant between 1996 and 1998 correspond to the quantities of bananas in respect of which it purchased export licences
      in that country.  In addition, and in any event, the possibility remains that some of the import duty paid by the applicant
      relates to bananas imported into the Community under Category B import licences which did not require the production of an
      export licence.  It may be noted in this connection that it is stated in one of the certified statements referred to above
      that the applicant purchased  
      additional licences for imports of bananas from Costa Rica, without specifying the category to which the licences related. 
      
      
      62
         
       The applicant ought to have taken all the greater care to communicate information on those various points because, both in
      its defence and in its rejoinder, the Commission expressly drew the applicant's attention to the fact that such information
      was essential if the existence and extent of the damage alleged were to be established.  Notwithstanding those observations,
      the applicant ─ as it acknowledged at the hearing in response to a question put by the Court of First Instance ─ has deliberately
      chosen not to supply the information. 
      
      
      63
         
       In the third place, even if the applicant did use on its own account all the export licences it had acquired, its method of
      determining loss, which is to claim that the loss is equal to the expense incurred, cannot be accepted. 
      
      
      64
         
       First, it is not inconceivable that, as the Commission has claimed, the cost of purchasing the export licences has been partly,
      or indeed wholly, passed on by the applicant in its sale prices.  That suggestion is all the more plausible because the quantities
      of bananas the importation of which into the Community depended on the issuing of an export licence represented a substantial
      proportion of the tariff quota. 
      
      
      65
         
       The applicant has not put forward anything to suggest that it was not possible to pass on the cost, nor has it even denied
      having done so in this case.  It has merely objected that that argument was raised by the Commission for the first time at
      the hearing and cannot therefore be taken into consideration by the Court.  That objection cannot be upheld, since the Commission
      expressly pointed out in its pleadings the need for information concerning the cost factors linked to the export licence regime
      and concerning the circumstances in which the bananas were imported.  Since the applicant has deliberately chosen to adopt
      an especially restrictive approach with regard to the furnishing of evidence, it is not reasonable for it to complain that
      the Commission expressed some of its criticisms in greater detail at the hearing. 
      
      
      66
         
       Second, the Commission's submission that the disadvantage constituted by the obligation on the part of Category A and C operators
      to acquire export licences was offset, at least in part, by the two other accompanying measures laid down in the Framework
      Agreement, namely the increase of 200 000 tonnes in tariff quota and the reduction of ECU 25 per tonne in the customs duty
      applicable to imports of third-country bananas within that quota, would not seem to be groundless.  It is true that those
      measures benefited Category B operators too, since part of the tariff quota was reserved for them also.  However, they benefited
      to a lesser extent only, since their share was limited to 30%, the other 70% being allocated to Category A and C operators.
      
      
      
      67
         
       It follows that the mere fact, assuming it to have been proved, that an operator has borne additional costs connected with
      its business dealings does not necessarily imply that it suffered a corresponding loss.  In this instance, by deliberately
      confining itself to basing its application on the single fact that it had incurred certain costs, the applicant has therefore
      not adduced sufficient proof of having actually sustained loss.
      
      
      15.  In paragraphs 68 to 74 of the judgment under appeal the Court of First Instance considered the appellant's application as
      regards the second component of the loss complained of (namely the cost of borrowing money to purchase the export licences
      concerned).  It held that the evidence adduced by the appellant in that connection was not conclusive.
      
      16.  In addition, in paragraphs 76 to 80 of the judgment under appeal the Court of First Instance held that the appellant had not
      provided evidence to show that there was any causal link between the unlawful behaviour of which it accuses the Commission
      and the damage complained of.
      
      17.  The Court of First Instance therefore dismissed the application for compensation.
       IV ─ The appeal
      
      18.  By application lodged at the Registry of the Court of Justice on 19 March 2001, the appellant brought this appeal.  It is
      applying to this Court for the judgment under appeal to be set aside in part and for an order that the Community should pay
      it the sum of DEM 828 337.10.
      
      19.  In support of its appeal, the appellant puts forward five pleas in law:
      
      
      ─
         error of law in the definition of  
         loss; 
      
      
      
      ─
         breach of the principle  
         compensatio lucri cum damno; 
      
      
      
      ─
         breach of the obligation to state adequate reasons; 
      
      
      
      ─
         error of law in the assessment of its arguments with regard to the use of export licences; and 
      
      
      
      ─
         error of law in the consideration of the causal link between the unlawful conduct of the institutions and the loss suffered.
         
      
      
      
      20.  I shall consider those various pleas in the order in which they are listed.  The first two pleas will be considered together
      since they both relate to the reasoning contained in paragraphs 63 to 67 of the judgment under appeal.
      
      
      
      A ─
       The first two pleas
      
      21.  Under its first plea, 
      
         			(12)
         		 the appellant maintains that the Court of First Instance committed an error of law holding that the appellant could have
      passed on the price of the export licences in the sale price of the bananas.  In the appellant's view the question of passing
      on the loss is irrelevant as regards determining the extent of the loss.  The Court of First Instance should have held that
      the loss corresponded to the price of the contested export licences.
      
      22.  Under its second plea, 
      
         			(13)
         		 the appellant criticises the Court of First Instance for holding that some of the measures in the Framework Agreement (namely,
      the increase in the tariff quota and the reduction in the customs duties) offset the disadvantages of the obligation to purchase
      export licences.  According to the appellant, the principle  
       compensatio lucri cum damno  only applies where the advantage created results from the same breach of the law as the loss.  In the present case the increase
      in quota and the reduction in customs duties do not constitute a breach of the law.
      
      23.  It should be pointed out that, according to established case-law, 
      
         			(14)
         		 the Court of Justice will reject from the outset complaints directed against grounds of a judgment of the Court of First
      Instance which are subsidiary or included only for the sake of completeness.  The Court of Justice considers that where the
      operative part of the judgment of the Court of First Instance is based on other grounds, put forward as the main grounds,
      such complaints cannot lead to the judgment under appeal being set aside and are therefore inoperative.
      
      24.  In the present case the first two pleas seek to challenge grounds which are subsidiary in relation to those set out in paragraphs
      59 to 62 of the judgment under appeal.
      
      25.  In paragraphs 58 to 67 of the judgment under appeal, the Court of First Instance considered the appellant's arguments with
      regard to the first component of the alleged loss, namely the sum of DEM 828 337.10.  It put forward two sets of considerations
      in that regard.
      
      26.  The first set of considerations relates to the value of the evidence adduced by the appellant.  The Court of First Instance
      held in paragraphs 59 to 62 that the appellant had not proved that its loss was genuine on the grounds that (1) the certified
      statements made by its auditor were not conclusive and (2) it was not established that the appellant had used the export licences
      on its own account.
      
      27.  The second set of considerations relates to the definition of  
      loss.  In paragraphs 63 to 67 of the judgment under appeal, the Court of First Instance held that  
      even on the assumption that [the sum of DEM 828 337.10] is unarguably genuine 
      
         			(15)
         		 and  
      even if the applicant did use on its own account all the export licences it had acquired, 
      
         			(16)
         		 the loss cannot be equivalent to the price of those licences.  It held that the appellant could have passed on the price
      of the licences in the sales price of the bananas and that some of the measures in the Framework Agreement had offset the
      disadvantage of the obligation to buy the contested licences.
      
      28.  It is clear from that information that the grounds relating to the definition of  
      loss (paragraphs 63 to 67 of the judgment under appeal) are subsidiary in relation to the grounds relating to the evidence adduced
      by the appellant (paragraphs 59 to 62 of the judgment under appeal).  The Court of First Instance made that assessment on
      the basis of the view, which it expressly rejected, that the appellant had adequately established that its loss was genuine.
      
      29.  In those circumstances, I think that the first two pleas are of no consequence.  They cannot entail the judgment under appeal
      being set aside because, for this to be done, the appellant must in any event show that the grounds relating to its evidence
      (paragraphs 59 to 62 of the judgment under appeal) are incorrect.
      
      30.  I therefore propose that this Court reject the first two pleas.
      
      
      
      B ─
       The third plea
      
      31.  Under its third plea, 
      
         			(17)
         		 the appellant claims that the judgment under appeal contains insufficient reasons.  It contends that in paragraph 59 of the
      judgment the Court discounted the first certified statement from the appellant's auditor without explaining how that evidence
      was insufficient to establish that the appellant's loss was genuine.
      
      32.  It should be pointed out that, in order to prove its loss, the appellant had produced three certified statements before the
      Court of First Instance.  The first certified statement appeared as an annex to the application and read  
      from 1996 to 1998 [the appellant had] disbursed DEM 828 337.10 on purchasing export licences for bananas from Costa Rica. 
      
         			(18)
         		  The two other certified statements appeared as annexes to the reply and stated that in 1996, 1997 and 1998 respectively
      the appellant paid DEM 767 225.38, DEM 489 029.36 and DEM 1 419.11 by way of  
      import duties on imports of bananas from Costa Rica. 
      
         			(19)
         		
      33.  Contrary to what the appellant contends, the Court of First Instance did give the reasons why those three certified statements
      did not provide proof of the alleged loss.
      
      34.  In paragraph 61 of the judgment under appeal the Court of First Instance held that  
      [i]n the absence of any information regarding the quantities of bananas to which [the] total amounts [of DEM 767 225.38, DEM
      489 029.36 and DEM 1 419.11] relate,  
       or the quantities to which the abovementioned amount of DEM 828 337.10 relates , or the parameters used by the auditor in arriving at those sums, it cannot be established with the requisite certainty that
      the quantities of bananas imported from Costa Rica into the Community by the applicant between 1996 and 1998 correspond to
      the quantities of bananas in respect of which it purchased export licences in that country. 
      
         			(20)
         		
      35.  In paragraph 62 of the judgment under appeal it added that  
      [t]he applicant ought to have taken all the greater care to communicate information on those various points because ... the
      Commission expressly drew the applicant's attention to the fact that such information was essential if the existence and extent
      of the damage alleged were to be established.  Notwithstanding those observations, the applicant ─ as it acknowledged at the
      hearing in response to a question put by the Court of First Instance ─ has deliberately chosen not to supply the information.
      
      36.  The Court of First Instance did therefore give the reasons for which the first certified statement produced by the appellant
      did not have adequate probative value.  In the view of the Court it was not sufficient to state the amount of the costs incurred
      in purchasing the export licences.  It was necessary in addition to give details of the parameters which entered into the
      calculation of those costs, in particular the quantities of bananas to which they related.
      
      37.  Consequently, I consider that the Court of First Instance complied with the formal requirement to state its reasons.  I therefore
      consider that this Court should reject the third plea.
      
      
      
      C ─
       The fourth plea
      
      38.  The fourth plea 
      
         			(21)
         		 is directed against paragraph 60 of the judgment under appeal.  The appellant criticises the Court of First Instance for
      holding that it was by no means established that the appellant itself actually used all the export licences corresponding
      to the sum certified by its auditor (DEM 828 337.10).
      
      39.  The appellant contends that the Court of First Instance incorrectly assessed its arguments.  In its submission, the payment
      of import duties, as certified by the auditor, proved that it had actually used the export licences and made the contested
      imports into the Community.  In that connection, the appellant submits a table indicating for the years 1996, 1997 and 1998
      the quantities of bananas imported and the costs of purchasing the export licences.  It states that the quantities of bananas
      imported may be deducted from the amount of import duties paid on the basis of a customs duty of ECU 75 or DEM 146.69 per
      tonne and that the price of the licences was DEM 96.61 per tonne.
      
      40.  It should be pointed out that it is settled case-law that the Court of Justice has no jurisdiction to find the facts or, as
      a rule, to examine the evidence which the Court of First Instance accepted in support of those facts.  Provided that the evidence
      has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof
      and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should
      be attached to the evidence produced to it. 
      
         			(22)
         		  That appraisal does not therefore constitute, save where the clear sense of that evidence has been distorted, a point of
      law amenable to review by the Court of Justice. 
      
         			(23)
         		
      41.  In the present case, the plea is specifically directed to challenging the assessment by the Court of First Instance of the
      evidence produced by the appellant.  The appellant claims, contrary to what was held by the Court of First Instance, that
      the certified statements produced at first instance contained all the evidence needed in order to show that it did actually
      use the contested licences. However, the appellant has neither established, nor even argued, that the Court of First Instance
      distorted the clear sense of the evidence produced before it.
      
      42.  In those circumstances, the fourth plea is manifestly inadmissible.
      
      
      
      D ─
       The fifth plea
      
      43.  Under its last plea, 
      
         			(24)
         		 the appellant contends that the Court of First Instance committed an error of law in its consideration of the causal link
      between the unlawful behaviour of the institutions and the loss suffered.  The appellant argues that, contrary to what the
      Court of First Instance held in paragraphs 76 to 80 of the judgment under appeal, the fact that it imported bananas originating
      in Costa Rica under the Framework Agreement was in itself sufficient to establish the existence of such a link.
      
      44.  It should be pointed out that, according to settled case-law, the Community's non-contractual liability is dependent on the
      coincidence of a series of conditions as regards the unlawfulness of the acts alleged against the institutions, the fact of
      the damage complained of and the existence of a causal link between the conduct of the institution concerned and the damage
      complained of. 
      
         			(25)
         		  It is also settled case-law that those conditions are cumulative so that if one of them is not satisfied the Community cannot
      incur liability. 
      
         			(26)
         		
      45.  In the present case we have already found that none of the four pleas seeking to establish the existence of the loss suffered
      by the appellant could be upheld.
      
      46.  In those circumstances, the fifth plea is inoperative. 
      
         			(27)
         		  It cannot entail the judgment under appeal being set aside since, even assuming it were well founded, the operative part
      of the judgment would in any event be based on other grounds relating to the absence of loss by the appellant.
        V ─ Conclusion
      
      47.  For the reasons set out above, I propose that the Court should dismiss the appeal and order the appellant to pay the costs
      at first instance and on appeal.
      
       1 –
         
           Original language: French.
      
      2 –
         
         [2001] ECR II-465,  
            the judgment under appeal.
         
      
      3 –
         
         Commission Regulation of 1 March 1995 on additional rules for the application of Council Regulation (EEC) No 404/93 as regards
            the tariff quota arrangements for imports of bananas into the Community and amending Regulation (EEC) No 1442/93 (OJ 1995
            L 49, p. 13).
         
      
      4 –
         
         See judgment under appeal (paragraphs 1 to 26).
      
      5 –
         
         OJ 1993 L 47, p. 1.
      
      6 –
         
         Hereinafter referred to as  
            third-country bananas.
         
      
      7 –
         
         Hereinafter referred to as  
            non-traditional ACP bananas.
         
      
      8 –
         
         Hereinafter referred to as  
            the Framework Agreement.
         
      
      9 –
         
         Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters
            within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336,
            p. 1).
         
      
      10 –
         
         Case C-122/95  
             Germany  v  
             Council  [1998] ECR I-973, paragraph 72.
         
      
      11 –
         
         Joined Cases C-364/95 and C-365/95  
             T. Port  [1998] ECR I-1023.
         
      
      12 –
         
         Appeal (paragraph 3).
      
      13 –
         
         Ibid. (paragraph 4).
      
      14 –
         
         See in particular, Case C-35/92 P  
             Parliament  v  
             Frederiksen  [1993] ECR I-991, paragraphs 25 and 26; Case C-244/91 P  
             Pincherle  v  
             Commission  [1993] ECR I-6965, paragraph 31; Case C-326/91 P  
             De Compte  v  
             Parliament  [1994] ECR I-2091, paragraph 94; Case C-39/93 P  
             SFEI and Others  v  
             Commission  [1994] ECR I-2681, paragraph 23; Case C-264/95 P  
             Commission  v  
             UIC  [1997] ECR I-1287, paragraphs 48 to 51; Case C-362/95 P  
             Blackspur DIY and Others  v  
             Council and Commission  [1997] ECR I-4775, paragraph 23; and order of 25 March 1996 in Case C-137/95 P  
             SPO and Others  v  
             Commission  [1996] ECR I-1611, paragraphs 47 to 49, order of 12 December 1996 in Case C-49/96 P  
             Progoulis  v  
             Commission  [1996] ECR I-6803, paragraph 27 and order of 18 October 2001 in Case C-241/00 P  
             Kish Glass  v  
             Commission  [2001] ECR I-7759, paragraph 42.
         
      
      15 –
         
         Judgment under appeal (paragraph 60).
      
      16 –
         
         Ibid. (paragraph 63).
      
      17 –
         
         Appeal (paragraph 5).
      
      18 –
         
         See judgment under appeal (paragraphs 45 and 57).
      
      19 –
         
         Ibid. (paragraphs 45 and 61).
      
      20 –
         
         Emphasis added.
      
      21 –
         
         Appeal (paragraph 6).
      
      22 –
         
         See for example, Case C-136/92 P  
             Commission  v  
             Brazzelli Lualdi and Others  [1994] ECR I-1981, paragraph 66; Case C-401/96 P  
             Somaco  v  
             Commission  [1998] ECR I-2587, paragraph 54 and Case C-185/95 P  
             Baustahlgewebe  v  
             Commission  [1998] ECR I-8417, paragraph 24.
         
      
      23 –
         
         See in particular Case C-53/92 P  
             Hilti  v  
             Commission  [1994] ECR I-667, paragraphs 42 and 43;  
             Blackspur DIY and Others  v  
             Council and Commission , cited above, paragraph 29; Case C-8/95 P  
             New Holland Ford  v  
             Commission  [1998] ECR I-3175, paragraph 26; Case C-257/98 P  
             Lucaccioni  v  
             Commission  [1999] ECR I-5251, paragraphs 45 to 47 and order of 6 October 1997 in Case C-55/97 P  
             AIUFASS and AKT  v  
             Commission  [1997] ECR I-5383, paragraph 25 and order of 16 October 1997 in Case C-140/96 P  
             Dimitriadis  v  
             Court of Auditors  [1997] ECR I-5635, paragraph 35.
         
      
      24 –
         
         Appeal (paragraph 7).
      
      25 –
         
         See for example Case 26/81  
             Oleifici Mediterranei  v  
             European Economic Community   [1982] ECR 3057, paragraph 16 and Joined Cases C-258/90 and C-259/90  
             Pesquerias De Bermeo and Naviera Laida  v  
             Commission  [1992] ECR I-2901, paragraph 42.
         
      
      26 –
         
         See for example Case C-237/98 P  
             Dorsch Consult  v  
             Council and Commission  [2000] ECR I-4549, paragraphs 17 to 19, 54 and 55.
         
      
      27 –
         
         See  
             Dorsch Consult  v  
             Council and Commission , cited above, paragraphs 52 to 54.