CELEX: 62003CC0295
Language: en
Date: 2005-04-12
Title: Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 12 April 2005. # Alessandrini Srl and Others v Commission of the European Communities. # Appeal - Bananas - Third-country imports - Regulation (EC) No 2362/98 - Import licences for bananas from ACP States - Measures under Article 20(d) of Regulation (EEC) No 404/93 - Non-contractual liability of the Community. # Case C-295/03 P.

OPINION OF ADVOCATE GENERAL
      RUIZ-JARABO COLOMER
      delivered on 12 April 2005 (1)
      
      Case C-295/03 P
      Alessandrini and Others
      v
      Commission of the European Communities
         
      (Appeal – Bananas – Third-country imports – Regulation (EC) No 2362/98 – Import licences for bananas from ACP countries – Measures under Article 20(d) of Regulation (EEC) No 404/93 – Non-contractual liability of the Community)I –  Introduction
      1.     This is an appeal against the judgment of the Court of First Instance of 10 April 2003 in Joined Cases T-93/00 and T-46/01
         Alessandrini and Others  v Commission [2003] ECR II-1635 dismissing the actions for annulment brought against letters of that Institution refusing the requests
         made by several traditional importers of bananas originating in Latin America to use licences issued for imports of bananas
         from African, Caribbean and Pacific (ACP) countries in order to import them from other third countries.
      
      2.     This case concerns certain aspects of the common organisation of the market in bananas subsequent to its amendment by the
         Council in 1998. That amendment, once implemented by the Commission, led to the removal of the distinction on the basis of
         origin (ACP or third countries) previously drawn for the purposes of managing import licences.
      
      3.     Before the Court of First Instance, the appellants complained, in essence, that the detailed implementing rules adopted by
         the Commission infringed the basic legislation, that those rules had caused them financial loss and that the Commission had
         not adopted the necessary transitional measures. 
      
      Before the Court of Justice, the appellants seek only compensation for the harm which they claim to have sustained.
      II –  Legal background 
      Regulation (EEC) No 404/93 
      4.     Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas, (2) implemented, in Title IV, with effect from 1 July 1993, a common arrangement for trade with third countries in place of the
         various national arrangements. Bananas were classified as follows: ‘Community bananas’ harvested in the Community, ‘bananas
         originating from the ACP countries’ and ‘third-country bananas originating from third countries other than the ACP countries’.
         7Within the second category, the term ‘traditional ACP bananas’ referred to the quantities of bananas exported by the ACP
         countries which did not exceed the usual quota, as laid down in the Annex to Regulation No 404/93, whereas ‘non-traditional
         ACP bananas’ referred to the quantities of bananas exported by the ACP countries which exceeded that usual limit.
      
      5.     Under the first paragraph of Article 17 of Regulation No 404/93, the importation of bananas into the Community is to be subject
         to the submission of an import licence issued by the Member States at the request of any party concerned, irrespective of
         his place of establishment within the Community, without prejudice to the special provisions made for the implementation of
         Articles 18 and 19. 
      
      6.     The original version of Article 18(1) of Regulation No 404/93 provided for an annual tariff quota of two million tonnes (net
         weight) for imports of third-country bananas and non-traditional ACP bananas. Within the framework of the tariff quota, imports
         of third-country bananas were to be subject to a duty of ECU 100 per tonne and imports of non-traditional ACP bananas were
         to be subject to a zero duty. The original version of Article 18(2) of that regulation provided that imports of non-traditional
         ACP bananas and imports of third-country bananas imported apart from the tariff quota were to be subject to duties of ECU
         750 per tonne and ECU 850 per tonne respectively.
      
      7.     Article 19(1) of Regulation No 404/93 broke down the tariff quota, opening it as to 66.5% to operators who had marketed third-country
         or non-traditional ACP bananas (Category A), 30% to operators who had marketed Community or traditional ACP bananas (Category
         B), and 3.5% to operators established in the Community who had started marketing bananas other than Community or traditional
         ACP bananas from 1992 (Category C). 
      
      8.     Article 19(2) of Regulation No 404/93 provides: 
      ‘On the basis of separate calculations for each of the categories of operators [A and B], each operator shall obtain import
         licences on the basis of the average quantities of bananas that he has sold in the three most recent years for which figures
         are available.’
      
      Regulation (EEC) No 1442/93 
      9.     On 10 June 1993, the Commission adopted 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 (3) (‘the 1993 arrangement’). That arrangement remained in effect until 31 December 1998. 
      
      10.   In accordance with Article 5(1) of Regulation No 1442/93, the competent authorities of the Member States were to establish
         each year for each Category A and Category B operator registered in their territory the average quantities marketed during
         the three years prior to the year preceding that for which the quota was opened, broken down by economic activity in accordance
         with Article 3(1) of that regulation. That average was termed the ‘reference quantity’. 
      
      11.   Article 14(2) of Regulation No 1442/93, as amended by Commission Regulation (EC) No 2444/94 of 10 October 1994 (OJ 1994 L
         261, p. 3), provided: ‘Import licence applications shall be lodged with the competent authorities of any Member State during
         the first seven days of the last month of the quarter preceding that in respect of which the licences are issued.’ 
      
      Regulation (EC) No 1637/98 
      12.   Council Regulation (EC) No 1637/98 of 20 July 1998 amending Regulation (EEC) No 404/93 (OJ 1998 L 210, p. 28) introduced,
         with effect from 1 January 1999, important amendments to the common organisation of the market in bananas. In particular,
         it revised Articles 16 to 20 of Title IV of Regulation No 404/93. 
      
      13.   Article 18(1) of Regulation No 404/93, as amended by Regulation No 1637/98, provided for the opening of an annual tariff quota
         of 2 200 000 tonnes (net weight) for imports of third-country and non-traditional ACP bananas. Within the framework of this
         tariff quota, imports of third-country bananas were to be subject to duty of ECU 75 per tonne, while imports of non-traditional
         ACP bananas were to be free of duty.
      
      14.   Article 18(2) of that regulation, as amended by Regulation No 1637/98, provided for an additional annual tariff quota of 353
         000 tonnes (net weight) to be opened each year for imports of third-country and of non-traditional ACP bananas. Within the
         framework of this tariff quota, imports of third-country bananas were to be subject to duty of ECU 75 per tonne while imports
         of non-traditional ACP bananas were to be free of duty. 
      
      15.   Under Article 20(d) of Regulation No 404/93, as amended by Regulation No 1637/98, the Commission was empowered to adopt provisions,
         in accordance with the Management Committee system provided for in Article 27, for the management of the tariff quotas referred
         to in Article 18, including ‘any specific provisions needed to facilitate the switch from the import arrangements applying
         on and after 1 July 1993 to the present arrangements of … Title IV [of Regulation No 404/93].’
      
      Regulation (EC) No 2362/98 
      16.   On 28 October 1998, the Commission adopted Commission Regulation (EC) No 2362/98 laying down detailed rules for the implementation
         of Council Regulation (EEC) No 404/93 regarding imports of bananas into the Community, (4) Article 31 of which repealed Regulation No 1442/93 as from 1 January 1999. The new provisions on the management of import
         licences within the framework of the tariff quotas are found in Titles I, II and IV of Regulation No 2362/98 (‘the 1999 arrangement’).
         
      
      17.   The 1999 arrangement introduces a number of innovations by reference to the 1993 arrangement: 
      (a)      it removes any distinction based on the functions carried out by operators; 
      (b)      it takes account of the quantities of bananas imported;
      (c)      it provides for the management of import licences without reference to the origin (ACP or third countries) of the bananas;
         
      
      (d)      it increases the tariff quotas and the share attributed to new operators.
      18.   Article 2 of Regulation No 2362/98 divides the tariff quotas and the traditional ACP bananas referred to in Article 18(1)
         and (2) and Article 16, respectively, of Regulation No 404/93, as amended by Regulation No 1637/98, as follows: 
      
      –       92% to ‘traditional operators’ as defined in Article 3; 
      –       8% to ‘newcomers’ as defined in Article 7. 
      19.   Article 4(1) of Regulation No 2362/98 states that each traditional operator registered in a Member State is to receive, for
         each year and for all the origins listed in Annex I to that regulation, a single reference quantity based solely on the quantities of bananas imported during the reference period. According to Article 4(2) of that regulation,
         for imports carried out in 1999, the reference period was to be made up of the years 1994, 1995 and 1996. 
      
      20.   Article 6(1) provides that ‘[b]y 30 September at the latest each year, after making the necessary checks and verifications,
         the competent authorities shall determine, in accordance with Articles 3, 4 and 5, a single, provisional reference quantity
         for each traditional operator, on the basis of the average quantities of bananas imported by them from the origins listed
         in Annex I during the reference period’. The reference quantity is based on a three-year average, even where the operator
         has not imported bananas for part of the reference period. According to Article 6(2) of Regulation No 2362/98, the competent
         authorities are to provide the Commission each year with a list of traditional operators they have registered and the total
         provisional reference quantities determined. 
      
      21.   The rules for issuing import licences are laid down in Articles 14 to 22 of Regulation No 2362/98.
      22.   Article 14(1) of that regulation provides that ‘[f]or the first three quarters of the year, an indicative quantity expressed
         as the same percentage of available quantities from each of the origins listed in Annex I may be fixed for the purposes of
         issuing import licences’. 
      
      23.   Article 15(1) of that regulation provides that ‘[f]or each quarter of the year, applications for import licences shall be
         submitted to the competent authorities of the Member State in which operators are registered during the first seven days of
         the month preceding the quarter in respect of which the licences are being issued’. 
      
      24.   Article 17 provides that where, for a given quarter and for any one or more of the origins listed in Annex I, the quantities
         applied for appreciably exceed any indicative quantity fixed under Article 14, or exceed the quantities available, a percentage
         reduction to be applied to the amounts requested is to be fixed. 
      
      25.   Article 18 of Regulation No 2362/98 is worded as follows: 
      ‘1. Where a percentage reduction has been fixed for one or more given origins under Article 17, operators who have applied
         for import licences for the origin(s) concerned may: 
      
      (a)      either renounce their use of the licence by informing the relevant issuing authority accordingly within 10 working days of
         publication of the Regulation fixing the reduction percentage, whereupon the security lodged against the licence shall be
         released immediately; or
      
      (b)      submit one or more fresh licence applications for the origins for which available quantities have been published by the Commission,
         up to an amount equal to or smaller than the quantity applied for but not covered by the original licence issued. Such requests
         shall be submitted within the time-limit laid down in point (a) and shall be subject to all the conditions governing licence
         applications. 
      
      2. The Commission shall immediately determine the quantities for which licences can be issued for each of the origins concerned.’
         
      
      26.   Article 19(1) provides that ‘[t]he competent authorities shall issue import licences for the following quarter not later than
         the 23rd day of the last month of each quarter’.
      
      27.   Article 20(1) states that ‘u[]nused quantities covered by a given licence shall be re-allocated to the same operator – whether
         holder or transferee – upon application, for use in a subsequent quarter but still within the year of issue of the original
         licence. The security shall be retained in proportion to the quantities not used up.’ 
      
      28.   Title V of Regulation No 2362/98 contains a number of transitional provisions for 1999. Under Article 28(1), applications
         for registration for 1999 were to be submitted by 13 November 1998 at the latest, together with, in the case of traditional
         operators, a figure for the total quantity of bananas actually imported in each of the years of the reference period 1994
         to 1996 and the serial numbers of all the import licences and licence extracts used for those imports, and also the references
         of all the documentary evidence showing that duties had been paid. 
      
      29.   Annex I to Regulation No 2362/98 indicates the distribution of the tariff quotas referred to in Article 18(1) and (2) of Regulation
         No 404/93 and the traditional ACP quantity (857 700 tonnes). 
      
      The 2001 arrangement
      30.   The Council adopted Council Regulation (EC) No 216/2001 of 29 January 2001, Article 1 of which amended Articles 16 to 20 of
         Regulation No 404/93. (5)
      
      31.   The rules for applying Title IV of Regulation No 404/93 as thus amended were defined by Commission Regulation (EC) No 896/2001
         of 7 May 2001 laying down detailed rules for applying Regulation No 404/93 as regards the arrangements for importing bananas
         into the Community. (6) Those provisions applied as from 1 July 2001, in accordance with Article 32 of Regulation No 896/2001. 
      
      III –  Facts 
      32.   The appellants are undertakings which import bananas originating in Latin America. The competent national authorities with
         which the appellants are registered as traditional operators (Italy and, for London Fruit Ltd, the United Kingdom) allocated
         them provisional individual reference quantities for 1999. The appellants thus obtained import licences for third-country
         bananas for the first three quarters of that year. 
      
      33.   The facts of Case T-93/00 relate to the fourth quarter of 1999. For that period, the appellants sought import licences before
         the competent national authorities for the balance of their provisional individual reference quantities, which were granted
         up to the limits of the available quantities for imports of third-country bananas. (7)
      
      34.   For the part of the applications which could not be granted, the appellants still had the possibility of applying for import
         licences for a quantity of 308 978.252 tonnes of traditional ACP bananas. (8) They thus applied for import licences for ACP bananas within the limits of the remaining quantities, in accordance with Article
         18(1) of Regulation No 2362/98, the respective reference quantities being broken down as follows:
      
      Alessandrini Srl                                                        KG 2 050
      Anello Gino di Anello Luigi & C. Snc  KG 1 859
      Arpigi SpA  KG 757
      Bestfruit Srl  KG 2 637
      Co-Frutta SpA  KG 209 392
      Co-Frutta Soc. coop. arl  KG 30 207
      Dal Bello Sife Srl  KG 1 533
      Frigofrutta Srl  KG 2 990
      Garletti Snc  KG 4 419
      London Fruit Ltd  KG 286 004
      35.   On 13 October 1999, the competent national authorities issued to the appellants import licences for ACP bananas for the entire
         quantity applied for, but, in spite of numerous attempts, the appellants did not succeed in obtaining supplies. 
      
      36.   Faced with that situation, on 18 November 1999, the appellants, relying on Article 232 EC, requested the Commission: 
      (1)      to take the necessary measures to enable them to use the fourth-quarter licences issued for imports from ACP countries to
         import bananas from Latin American or other third countries; 
      
      (2)      in any event, to order the release of the securities for those licences, since  they were not being used and the non-use was
         not attributable to their holder. 
      
      37.   Not having received a response to that request, the appellants, by fax of 22 December 1999, drew the Commission’s attention
         to the fact that the licences would expire on 7 January 2000 and requested the Commission to take a decision in respect of
         their requests. 
      
      38.   By letter No 02418 of 26 January 2000, addressed to the appellants’ counsel, the Commission replied as follows: 
      ‘In your letter of 22 December 1999, you referred to difficulties encountered by certain operators in using the banana import
         licences issued for the fourth quarter of 1999, in particular for the import of bananas originating from ACP countries. 
      
      First of all, the nature of those problems is essentially commercial and, therefore, may be attributed to the activities of
         economic operators. The problem raised concerns the search for commercial partners for the purchase and transport of certain
         products and, specifically in the present case, of bananas from ACP countries. Although it is regrettable, the fact that your
         clients were unable to conclude contracts for the supply of ACP bananas is part of the commercial risk which is normally assumed
         by operators.
      
      Lastly, we note that those difficulties concern only certain operators not described in detail, and that intervention on the
         part of the Commission would risk favouring some operators to the detriment of others who have assumed the risks associated
         with the obligations they have taken on.’
      
      39.   The competent national authorities kept the security lodged by the appellants, after taking the view that the grounds relied
         on by the appellants to recover that security did not constitute force majeure, the only scenario which would allow for release.
      
      40.   The facts of Case T-46/01 relate to the fourth quarter of 2000. For that period, the remainder of the available individual
         reference quantity for each of the appellants was as follows:
      
      Alessandrini Srl  KG 5 667
      Anello Gino di Anello Luigi & Cie snc  KG 5 140
      Arpigi SpA  KG 5 792
      Bestfruit Srl  KG 7 290
      Co-Frutta SpA  KG 236 746
      Co-Frutta Soc. coop. arl  KG 80 301
      Dal Bello Sife Srl  KG 4 110
      Frigofrutta Srl  KG 8 226
      Garletti Snc  KG 7 329 
      London Fruit Ltd  KG 324 124 
      41.   Since the licence applications for third-country bananas exceeded the unallocated quantities, the Commission specified in
         Regulation (EC) No 1971/2000 (9) the quantity of bananas still available for import for the fourth quarter of 2000. According to the annex to that regulation,
         import licences could still be issued for traditional ACP bananas up to 329 787.675 tonnes, although the appellants did not
         apply for them. 
      
      42.   On 10 October 2000, the appellants, relying on Article 232 EC, requested the Commission, primarily, to take measures pursuant
         to Article 20(d) of Regulation No 404/93 in order to grant them, for the fourth quarter of 2000, import licences for third-country
         bananas for the remainder of the individual reference quantities which had been allocated to them. In the alternative, they
         claimed damages for loss of earnings owing to the fact that they were unable to import and market those bananas. 
      
      43.   By letter No AGR 030905 of 8 December 2000, addressed to the appellants’ counsel, the Commission rejected those claims as
         follows:
      
      ‘In your letter of 10 October 2000, you informed the Commission of difficulties encountered by certain operators in obtaining
         bananas in order to make full use of the reference quantities granted to them for 2000, within the framework of the tariff
         import quotas arrangement.
      
      The difficulties to which you refer are essentially commercial in nature. We regret to inform you that Community law does
         not confer any power in these matters on the Commission. You recognise this situation yourself when you state that operators
         who do not have regular contact with ACP banana producers encounter difficulties in obtaining the goods in question. 
      
      You also state that the operators you represent are not able to make full use of all the reference quantities allocated to
         them.
      
      We must point out to you that, from a legal standpoint, the reference quantities merely open up opportunities for operators
         and are determined on the basis of their previous business, pursuant to Community regulations; they confer on the parties
         concerned no more than the right to submit applications for import licences with a view to carrying out commercial operations
         which they have agreed on with suppliers in producing countries. 
      
      Lastly, we must add that, on the basis of the information you have supplied to the Commission, it appears that the difficulties
         to which you refer are not “transitory in nature” in that they may be attributed to the transition from the arrangement which
         applied prior to 1999 to the one which applied as from then. Accordingly, the provision of Article 20(d) of Regulation ...
         No 404/93 does not allow the Commission to adopt the specific measures which you request.’ 
      
      IV –  The action for annulment before the Court of First Instance
      44.   The undertakings concerned each brought actions before the Court of First Instance against the Commission’s letters of 26
         January 2000 (Case T-93/00) and 8 December 2000 (Case T-46/01).
      
      45.   Invoking the plea of illegality provided for in Article 241 EC, in each action they put forward three pleas in law, alleging
         infringement of Regulation No 404/93, infringement of the right of property and free enterprise, and infringement of the principle
         of non-discrimination. 
      
      V –  The judgment under appeal
      46.   The judgment of the Court of First Instance of 10 April 2003 began by considering the plea of inadmissibility raised by the
         Commission on the ground that the appellants did not have locus standi.
      
      47.   Although each of the contested letters responded to requests of a different nature, (10) the Court held that both referred to the possibility that the Commission would adopt measures pursuant to Article 20(d) of
         Regulation No 404/93. The decision not to exercise that power was of direct and individual concern to the addressees, because
         it affected their interests by bringing about a distinct change in their legal position. (11)
      
      48.   After dismissing the plea of inadmissibility, the Court of First Instance examined the three pleas put forward by the applicants
         in those proceedings in support of their claim that Commission Regulation No 2362/98 is unlawful, alleging, respectively,
         infringement of Regulation No 404/93, infringement of the right of property and free enterprise, and infringement of the principle
         of non-discrimination. 
      
      49.   The judgment under appeal rejected those pleas on the ground that the appellants had not established a direct legal link between
         the letters of 26 January 2000 and 8 December 2000, on the one hand, and the provisions of Regulation No 2362/98, on the other.
         (12)
      
      50.   The appellants submitted that, under Article 20(d) of Regulation No 404/93, the Commission was required to take note of the
         practical impossibility of obtaining ACP bananas and to allow them to import third-country bananas up to their individual
         reference quantities. (13)
      
      The Court of First Instance assessed the Commission’s broad discretion when adopting ‘specific provisions needed’ to facilitate
         the transition from the 1993 arrangement to the 1999 arrangement, and limited its review of the legality of the exercise of
         that discretion to examining whether there had been a manifest error. According to the Court of First Instance, however, the
         losses which the appellants might claim to have suffered were not the direct result of that transition, but of their inability
         to obtain ACP bananas in the fourth quarter of 1999 (in respect of Case T-93/00) or of their refusal to obtain import certificates
         for ACP bananas in respect of the fourth quarter of 2000 (in connection with Case T‑46/01). (14)
      
      In those circumstances, the judgment held that the Commission had not exceeded the limits of its discretion by refusing to
         adopt any provision pursuant to Article 20(d) of Regulation No 404/93, and therefore rejected the plea in its entirety. (15)
      
      51.   However, the Court of First Instance acknowledged, however, in respect of Case T-93/00, that, although the appellants’ line
         of argument could be construed as attributing the impossibility of finding commercial partners to the entry into force of the 1999 arrangement, they had not demonstrated to the requisite legal standard that the Commission had made a manifest error of assessment in
         refusing to grant their request for measures under Article 20(d) of Regulation No 404/93. (16)
      
      52.   Finally, the Court of First Instance considered the claims for compensation made by the appellant undertakings, which maintained
         that, by providing for the combined management of the third-country and ACP tariff quotas and, in particular, for the merging
         of the reference quantities and by failing to take action to mitigate the harmful effects thereof, the Commission’s conduct
         was illegal.
      
      53.   The judgment now under appeal accepted the Commission’s argument that there is no causal link between the changes brought
         about by Regulation No 2362/98 and the difficulties experienced by the appellants in obtaining ACP bananas. 
      
      54.   The Court of First Instance held that, ‘in Case T-93/00, the cause of the damage alleged relates to the fact that the appellants
         were unable to find suppliers willing to supply them with ACP bananas in the fourth quarter of 1999. In Case T-46/01, the
         lost earnings complained of by the appellants is directly attributable to their lack of diligence. They did not apply for
         import licences for ACP bananas for the fourth quarter of 2000 in conformity with Regulation No 1971/2000 once the quantity
         of third-country bananas was exhausted. In addition, despite the problems encountered during the fourth quarter of 1999, they
         did not seek to foster contacts with suppliers of ACP bananas in 2000 so as to be able to obtain banana supplies in the fourth
         quarter of that year.’ (17)
      
      VI –  Analysis of the appeal
      55.   The appellants claim that the Court should:
      –       set aside the judgment under appeal in part is so far as it deals with the application for damages;
      –       order the Commission to pay the appellants damages for the losses sustained as a result of the Commission’s failure to grant
         licences for third-country bananas;
      
      –       order the Commission to pay the costs of the entire proceedings. 
      56.   The Commission contends that the appeal should be declared inadmissible and, failing that, that it should be dismissed. If
         the judgment under appeal is set aside in part, the Commission asks that the case be referred back to the Court of First Instance
         for judgment on the merits, and that the appellants be ordered to pay the costs.
      
      57.   The plea of inadmissibility is based on the alleged mutatio litis made by the appellants, who, in contrast to the forms of order which they sought before the Court of First Instance, now
         request the Court of Justice to make a direct determination of the Commission’s non-contractual liability.
      
      58.   In the light of the circumstances in which this appeal arises, it seems appropriate that the admissibility of the action to
         establish liability and the merits of the case be dealt with together.
      
      59.   The appellants criticise the Court of First Instance for having failed to take account of the arguments submitted in support
         of their application for damages and claim that it erred because, by attributing the loss which they sustained to their inability
         to import ACP bananas, it did not acknowledge that it was impossible for them to obtain import licences for the third-country
         reference quantities to which they were entitled; they add that if the Commission had not made provision for the combined
         tariff quotas and the merging of the reference quantities, they would have been able to obtain those licences.
      
      They submit that the main purpose of their action was to establish that Regulation No 2362/98 was the direct source of the
         losses which they had sustained.
      
      60.   Finally, they criticise paragraphs 56 and 58 of the judgment under appeal – in which the parties’ claims are summarised –
         in that they incorrectly insinuate that the losses sustained are attributable to the letters of 26 January 2000 and 8 December
         2000. 
      
      61.   The Commission maintains that the appeal should be dismissed in its entirety, since it is limited to the claim for compensation
         and does not challenge the Court of First Instance’s finding in respect of the alleged illegality of Regulation No 2362/98.
      
      62.   With regard to the part annulment of the judgment under appeal, the Commission maintains that the appellants confuse certain
         aspects of the alleged loss – namely, the fact that they had not made full use of their reference quantities – with the causal
         link required between that loss and the allegedly unlawful conduct giving rise to it.
      
      63.   As regards the complaint that the wording of paragraphs 56 and 57 of the judgment at first instance is defective, the Commission
         maintains that they correctly summarise the content of the dispute between the parties in the light of the pleadings submitted,
         both in writing and at the hearing.
      
      64.   The Commission also submits that if the Court of First Instance had considered that the claim for compensation was based exclusively
         on the two letters in question, the legality of which it had previously recognised, it would not have been concerned about
         the causal link because, as no unlawful conduct could be attributed to it, there would be no liability. 
      
      65.   The appellants concentrate on establishing that the Court of First Instance, when considering their claims for compensation,
         should have examined the legality of Regulation No 2362/98, since it not only infringed the terms of Council Regulation No
         404/93 but also infringed the fundamental right of property and free enterprise and the principle of non-discrimination. 
      
      66.   They maintain, with reference to the infringement of the obligation laid down in Article 20(d) of Regulation No 404/93, that
         the change in the arrangement introduced in 1999 reduced their possibilities of obtaining bananas from third countries for
         the whole of their reference quantities. 
      
      67.   The judgment under appeal, after attributing the losses sustained by the appellants to their own conduct, fails to check the
         accuracy of their claims that their inability to find suppliers of ACP bananas was a consequence of the implementing rules
         of the 1999 arrangement. The decision at first instance correctly describes the immediate causes of the economic loss sustained
         by the appellants, namely, the inability to attain the supplies and the import licences, in the last quarters of 1999 and
         2000 respectively. However, it fails to address the remote cause of those difficulties: the impact of Regulation No 2362/98
         on the business practices of operators. 
      
      68.   The European Court of Human Rights has declared, in connection with the concept of a fair hearing, that Article 6(1) of the
         Rome Convention of 4 November 1950 does not require the courts to give a detailed answer to every argument put forward by
         litigants. However, if, depending on the circumstances of each case, a plea or an objection is formulated in a sufficiently
         clear and precise manner, reliable evidence is adduced to support it and it matters to the outcome of the dispute, it must
         be accounted for; otherwise, there will be uncertainty about those arguments, in particular as to whether the court has forgotten
         to deal with them, whether it has rejected them and, above all, what its reasons were for so deciding. (18)
      
      69.   In addition to placing emphasis on the alleged illegality of Regulation No 2362/98, the appellants explain the impact of that
         legislation on economic activity in the sector and on the ability of undertakings which have traditionally imported bananas
         from third countries to obtain supplies of ACP bananas. 
      
      70.   According to the appellants, the introduction of the combined management of the tariff quotas and the merging of the reference
         quantities had maintained and reinforced the privileged position enjoyed by importers of ACP bananas. Whereas, under the 1993
         arrangement, operators specialising in third countries had free access to the ACP banana market, the new system requires them
         to use their reference quantities.
      
      71.   In their view, the fact that more than a third of the quantity of traditional ACP bananas has not been used proves that the
         new arrangement favours ACP operators, to the detriment of importers of third-country bananas.
      
      72.   The appellants’ arguments do not stand out for their clarity or their persuasiveness. It appears that the new rules providing
         for shared reference quantities and the combined management of the tariff quotas caused a transfer of the demand for imports
         of ACP bananas to those from third countries and that the third-country quota was therefore exhausted prematurely.
      
      The appellants provide no further information as to the nature of the problems they encountered in attempting to obtain supplies
         of ACP bananas in the fourth quarter of 1999. Paragraph 33 of the judgment under appeal states that the plaintiffs, ‘despite
         repeated attempts’, were unable to obtain supplies of ACP bananas.
      
      That fact – which suggests that there was no negligence on the part of the undertakings concerned – ought to have encouraged
         the Court of First Instance to ascertain whether the other explanations regarding the origin of the loss were accurate and,
         if so, to consider whether Regulation No 2362/98 was unlawful. 
      
      73.   If it is agreed, if only for the sake of argument, that the appellants displayed proper diligence but were unable to find
         suppliers of ACP bananas for the fourth quarter of 1999, they may be forgiven for not resuming such futile efforts for the
         last quarter of the following year.
      
      It should also be borne in mind that it is difficult to prove a negative fact, such as the absence of a reasonable expectation
         of finding a trading partner at a particular time. 
      
      74.   I therefore conclude that, in Case T-93/00 and also, although less strongly, in Case T-46/01, the appellants had raised a
         plea which was sufficiently clear and precise and which merited, at least, express rejection by the Court of First Instance.
      
      75.   Since that did not happen, the judgment under appeal contains an error of law consisting in an infringement of one of the
         requirements of a fair hearing. I therefore consider that it should be set aside in so far as, in paragraph 108, it simply
         held the appellants’ conduct to be the sole cause of the loss invoked, without considering the consequences of the application
         of the new arrangement introduced after Regulation No 2362/98 came into force.
      
      VII –  Analysis of the substance of the case
      76.   Article 54 of the EC Statute of the Court of Justice provides that, ‘if the appeal is well founded, the Court of Justice shall
         quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the
         proceedings so permits, or refer the case back to the Court of First Instance for judgment.’ One of the situations to which
         the opportunity offered by this provision applies is that of error in the judgment, provided that the account of the facts
         is complete and sufficient for final judgment to be given and that there is no need to take any evidence. This appears to
         be the view taken in the case-law of the Court of Justice, although the Court has never stated the reason why the state of
         the proceedings permits it to give judgment itself, but had merely made the succinct assertion, for example, that ‘this is
         the case’. (19) In short, it is appropriate for the Court of Justice to adjudicate on the substance when it is apparent from the documents
         before it that the case is ready for judgment; it is therefore necessary to analyse, at least briefly, the main arguments
         in the action for compensation brought by the appellants and, for the purposes of the present case, to consider the specific
         grounds of annulment raised against Regulation No 2362/98. Furthermore, in the interest of safeguarding the appellants’ procedural
         rights, the parties were requested to concentrate their arguments, at the hearing, on the possible illegality of that regulation.
         
      
      77.   Referring to the pleadings submitted in connection with the plea of illegality which they raised at first instance, the appellants
         put forward three separate grounds of annulment. 
      
      78.   They claim that Regulation No 2362/98 is illegal, not only because it is inconsistent with Regulation No 404/93, as amended
         by Regulation No 1637/98 (first ground of annulment) but also because it infringes the fundamental rights of property and
         free enterprise (second ground) and the principle of non-discrimination (third ground). 
      
      79.   In the context of the first ground of annulment, they criticise the fixing of the three-year period 1994-1996 as a reference
         period for the allocation of the quotas.
      
      80.   The choice of the period in issue affects the calculation of the individual amounts authorised, since each operator is granted
         the corresponding quota according to the average of his imports during the three years under the consideration. However, the
         claim for compensation in these proceedings is based on the fact that it was impossible to obtain import licences for the
         amounts granted to the appellants, as their counsel acknowledged at the hearing. The dispute concerning the rules for the
         previous distribution of the reference quantities is unconnected with the matter at issue. This claim should therefore be
         rejected as manifestly irrelevant.
      
      81.   The appellants also criticise the adoption of the system of combined management of the tariff quotas which, together with
         the merging of the reference quantities, strengthened the privileged position of importers of ACP bananas. 
      
      82.   According to the Commission, the fact that there is only one quota favours trade and increases the freedom of operators. Since
         it makes no distinction between importers of ACP bananas and importers of third-country bananas, it gives both types of importer
         the opportunity to obtain supplies of fruit from any source.
      
      83.   It need only be pointed out that Article 19 of Regulation No 404/93, as amended, gives the Commission a wide discretion to
         implement the basic regulation, with the sole proviso that the method chosen is to take account of traditional trade flows.
         Apart from that, Article 20(e) of that regulation, as amended, requires the Commission to adopt the measures needed to ensure
         respect for obligations stemming from agreements concluded by the Community under Article 228 of the Treaty. 
      
      84.   It should be remembered that, in matters relating to agriculture, the Commission is authorised to adopt all the implementing
         measures which are necessary or appropriate for the implementation of the basic legislation, provided that they observe the
         relevant criteria for validity. (20)
      
      85.   None of the evidence adduced by the appellants leads to the conclusion that, by selecting the management method which harmonises
         the objectives pursued, the Commission manifestly exceeded the limits of the discretion conferred on it by the Council.
      
      86.   Secondly, the appellants complain that the impossibility of obtaining import licences for bananas from third countries constituted
         an infringement of their right of property and free enterprise. 
      
      87.   In the common organisation of the market in bananas, reference quantities represent only authorisation to import. Although
         both the right of property and the freedom to pursue a trade or profession form part of the general principles of Community
         law, they do not constitute an unfettered prerogative, but must be viewed in the light of the social function which they perform.
         Consequently, they may be restricted, particularly in the context of a common organisation of the market, provided that those
         restrictions in fact correspond to objectives of general interest pursued by the Community and that they do not constitute
         a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. (21)
      
      88.   The introduction of the Community quota and of the rules for apportioning it do not question the operators’ right of property
         in respect of bananas from third countries, since no operator may claim such a right of property over a market share which
         he had at a time prior to the creation of a common organisation of markets, because that market share represents only a momentary
         economic situation which is exposed to the vagaries of a change in circumstances.
      
      89.   Likewise, traders are unable to claim a vested right even to a legitimate expectation that an existing situation will be maintained,
         since it is capable of being altered by decisions taken by the Community institutions within the limits of their discretion.
         (22)
      
      90.   None of the appellants’ claims supports the conclusion that the Commission’s conduct has infringed the very essence of the
         fundamental rights invoked.
      
      91.   Thirdly and lastly, the appellants complain that the system introduced by the regulation discriminates between importers who
         traditionally obtained supplies from third countries and those who obtained them from ACP countries, to the detriment of the
         former. 
      
      92.   This claim should be rejected without any detailed analysis, because the appellants have not explained how the alleged unequal
         treatment gave rise to the liability for compensation which they claim.
      
      93.   In short, none of the appellants’ claims is capable of establishing that Regulation No 2362/98 is illegal; it is therefore
         unnecessary to consider whether the other preconditions for the Community’s non-contractual liability are satisfied. 
      
      VIII –  Costs
      94.   Under Article 69(2) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 118, the unsuccessful
         party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Although the judgment
         under appeal should be set aside, the appellants’ action should be dismissed on the merits. They should therefore be ordered
         to pay all the costs.
      
      IX –  Conclusion
      95.   In the light of all of the foregoing, I propose that the Court of Justice should:
      (1)      Set aside the judgment of the Court of First Instance of 10 April 2003 in Joined Cases T-93/00 and T-46/01;
      (2)      Dismiss the action;
      (3)      Order the appellants to pay the costs.
      1 –	Original language: Spanish.
      
      2 –	OJ 1993 L 47, p. 1.
      
      3 – 	OJ 1993 L 142, p. 6.
      
      4 – 	OJ 1998 L 293, p. 32.
      
      5 – 	OJ 2001 L 31, p. 2.
      
      6 – 	OJ 2001 L 126, p. 6. 
      
      7 –	Published in the annex to Commission Regulation (EC) No 1824/1999 of 20 August 1999 amending Regulation (EC) No 1623/1999
         fixing quantities for imports of bananas into the Community for the fourth quarter of 1999 under the tariff quotas or as part
         of the quantity of traditional ACP bananas (OJ 1999 L 221, p. 6).
      
      8 – 	A quantity fixed by Commission Regulation (EC) No 1998/1999 of 17  September 1999 on the issuing of import licences for
         bananas under the tariff quotas and the quantity of traditional ACP bananas for the fourth quarter of 1999 and on the submission
         of new applications (OJ 1999 L 247, p. 10).
      
      9 – 	Commission Regulation (EC) No 1971/2000 of 18 September 2000 on the issuing of import licences for bananas under the tariff
         quotas and for traditional ACP bananas for the fourth quarter of 2000 and on the submission of new applications (OJ 2000 L
         235, p. 10).
      
      10 – 	In the first request, the appellants in the present proceedings asked to use their licences in order to import  bananas
         from non-member countries in the fourth quarter of 1999 and for the corresponding unused securities to be released (paragraph
         34 of the judgment under appeal); in the second, they asked to be issued with licences to import bananas from non-member countries
         for the fourth quarter of 2000, for the remainder of the individual reference quantities which had been allocated to them;
         in the alternative, they asked to be compensated for loss of earnings (paragraph 41 of the judgment under appeal).
      
      11 – 	Paragraph 65 of the judgment of the Court of First Instance. 
      
      12 – 	Ibid., paragraph 81. 
      
      13 – 	Ibid., paragraph 83.
      
      14 –       Ibid., paragraphs 86 to 95. 
      
      15 –       Ibid., paragraphs 91, 96 and 97. 
      
      16 – 	Ibid., paragraph 92. Emphasis added.
      
      17  – 	Ibid., paragraph 108.
      
      18  – 	See the judgments of the European Court of Human Rights of 9 December 1994 in Ruiz Torija  v Spain (Series A, No 303 A), paragraphs 29 and 30, and Hiro Balani  v Spain (Series A, No 303 B), paragraphs 27 and 28.
      
      19  – 	Case C‑345/90 P Parliament  v Hanning [1992] ECR I-949 et seq., especially I‑989; and Case C‑137/92 P Commission  v BASF and Others [1994] ECR I-2555, paragraph 55.
      
      20 – 	Case C‑478/93 Netherlands  v Commission [1995] ECR I-3081, paragraph 31; and Case C‑239/01 Germany  v Commission [2003] ECR I-10333, paragraph 55. 
      
      21 – 	Judgments in Case 265/87 Schraeder [1989] ECR 2237, paragraph 15, and Case 5/88 Wachauf [1989] ECR 2609, paragraph 18. 
      
      22 – 	Case 52/81 Faust  v Commission [1982] ECR 3745, paragraph 27.