CELEX: C1999/071/66
Language: en
Date: 1999-03-13 00:00:00
Title: Action brought on 4 January 1999 by Banatrading GmbH against the Council of the European Union (Case T-3/99)

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;
 ---pagebreak--- C 71/36              EN               Official Journal of the European Communities                                 13.3.1999
4. order interest of 4 % on the applicant's claims for           2. order the Commission to compensate the applicant in
    damages, as from the commencement of proceedings;                kind for its loss by issuing import licences;
5. order the Council to pay the costs of the dispute;
                                                                 3. order the Commission to pay the costs.
In the alternative:
                                                                 Pleas in law and main arguments adduced in support:
5. order the Council to compensate the applicant for the
    above-mentioned losses suffered by it since
                                                                 According to the applicant, the Commission has, on
    8 September 1997;
                                                                 several occasions following tropical storm damage, opened
                                                                 additional import quotas for bananas by means of
                                                                 tropical storm regulations'.
Further in the alternative:
6. order the Council to compensate the applicant for the         The applicant, which is a traditional importer of bananas
    above-mentioned losses suffered by it since                  and a Category A operator within the meaning of
    25 September 1997.                                           Regulation (EEC) No 404/93, states that it has repeatedly
                                                                 applied to the competent German authorities, without
                                                                 success, for an allocation out of such quotas (9 000 tonnes
Pleas in law and main arguments adduced in support:              in total, of which 6 000 tonnes in respect of the 1995 and
                                                                 1996 quotas). Although it brought national legal
                                                                 proceedings against each refusal decision, its applications
The pleas in law and main arguments are the same as in           were either dismissed or withdrawn, since the German law
Case T-2/99.                                                     of administrative procedure did not permit further
                                                                 proceedings (claim for damages as a result of official
                                                                 liability). The applicant considers that its remedy in
                                                                 damages lies rather with the Court of First Instance of the
                                                                 European Communities.
Action brought on 4 January 1999 by O.G.T. Fruchthan-            By a decision of 29 April 1997, in a disputes resolution
delsgesellschaft against the Commission of the European          procedure, the WTO Panel stated that the tropical storm
                        Communities                              regulations', with their exclusive award of licences to
                                                                 Community and ACP producers, producer organisations
                        (Case T-4/99)                            and operators, would conflict, inter alia, with the
                       (1999/C 71/67)                            provisions of the GATT and the GATS. In the applicant's
                                                                 submission, the provisions of the GATT have since
                                                                 1 January 1995 taken general precedence over secondary
              (Language of the case: German)                     Community legislation and render Articles 1(2) and 2
                                                                 of the tropical storm regulations' for 1995 and 1996
                                                                 invalid.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 4 January 1999           The necessary conditions having been met, the applicant
by O.G.T. Fruchthandelsgesellschaft, whose registered            maintains that the Community organs which have enacted
office is in Cologne, represented by Gert Meier, Rechts-         Community law contrary to the GATT are liable to pay
anwalt, Jakordenstraûe 10, Köln.                                 compensation for resulting loss.
The applicant claims that the Court should:
                                                                 In this particular case, the applicant submits that
                                                                 compensation in kind through the issue of import licences,
                                                                 serving as a precedent for the future, is appropriate,
1. order the Commission to compensate the applicant for
                                                                 especially as the value of the tropical storms import
    its loss suffered since 1 January 1995 through not
                                                                 licences not granted is difficult to ascertain. That would
    being granted tropical storms import licences (licences
                                                                 also satisfy the applicant's claims for compensation in
    for the importation of bananas out of the exceptional
    allocations granted by Regulations (EC) Nos 510/95           respect of lost profit.
    of 7 March 1995 (OJ L 51, 8.3.1995, p. 8), 1163/95
    of 25 May 1995, 2358/95 of 6 October 1995, 127/96
    of 21 January 1996 and 822/96 of 3 May 1996);