Commission of the European Communities v Fresh Marine Company A/S.
Date: 2003-07-10
17.  In order for the Community to incur liability under the second paragraph of Article 215 of the Treaty, a number of conditions, including the existence of a causal link between the conduct alleged against the institution concerned and the damage complained of, must be satisfied (see,   inter alia  , Case 4/69   Lütticke   v   Commission   [1971] ECR 325, paragraph 10).
24.  In that regard, the system of rules which the Court of Justice has worked out in relation to the non-contractual liability of the Community takes into account,   inter alia  , the complexity of the situations to be regulated, difficulties in the application or interpretation of the legislation and, more particularly, the margin of discretion available to the author of the act in question (see   Brasserie du Pêcheur and Factortame  , cited above, paragraph 43;   Bergaderm and Goupil  , cited above, paragraph 40; and Case C-312/00 P   Commission   v   Camar and Tico   [2002] ECR I-11355, paragraph 52).
25.  According to settled case-law, Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see   Brasserie du Pêcheur and Factortame  , paragraph 51,   Bergaderm and Goupil  , paragraphs 41 and 42, and   Commission   v   Camar and Tico  , paragraph 53).
26.  As regards the second condition, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion. Where that institution has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (see,   inter alia  ,   Bergaderm and Goupil  , paragraphs 43 and 44, and   Commission   v   Camar and Tico  , paragraph 54).
27.  Therefore, the determining factor in deciding whether there has been such an infringement is not the general or individual nature of the act in question but the discretion available to the institution concerned (see, to that effect,   Bergaderm and Goupil  , paragraph 46, and   Commission   v   Camar and Tico  , paragraph 55).
31.  It follows that the Commission clearly did not comply with its obligation to impose provisional duties only where there is reason to believe that the undertaking has been breached. In the circumstances of the present case, such conduct must be regarded as a sufficiently serious breach of a rule of Community law satisfying one of the conditions for the incurring of non-contractual liability by the Community (see,   inter alia  ,   Bergaderm and Goupil  , paragraphs 42 to 44, and   Commission   v   Camar and Tico  , paragraphs 53 and 54).
45.  Under Article 225 EC and Article 58 of the Statute of the Court of Justice, an appeal lies on a point of law only. It follows that, save where the clear sense of the evidence has been distorted, the Court has no jurisdiction to review the assessment of the facts made by the Court of First Instance (see,   inter alia  , Joined Cases C-280/99 P, C-281/99 P and C-282/99 P   Moccia Irme and Others   v   Commission   [2001] ECR I-4717, paragraph 78, and Case C-104/00 P   DKV   v   OHIM   [2002] ECR I-7561, paragraph 22).
68.  The claim for payment of interest is inadmissible on two grounds. First, it does not satisfy the requirements of Article 112(1)(c) of the Rules of Procedure of the Court of Justice because it does not refer to the provisions or principles of Community law alleged to have been infringed by the Court of First Instance. Second, it must be regarded as a new claim which cannot be presented for the first time in an appeal (see, to that effect, Case C-282/98 P   Enso Española   v   Commission   [2000] ECR I-9817, paragraph 62). Before the Court of First Instance, Fresh Marine claimed only that the Commission should be ordered to make good the damage it suffered and to pay the costs.