Judgments nº T-64/01 of Court of First Instance of the European Communities, February 10, 2004

Resolution DateFebruary 10, 2004
Issuing OrganizationCourt of First Instance of the European Communities
Decision NumberT-64/01

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

10 February 2004 (1) (Common organisation of the markets - Bananas - Imports from ACP States and third countries - Reference quantity - Regulations (EC) Nos 1924/95 and 2362/98 - Action for compensation)

In Joined Cases T-64/01 and T-65/01,

Afrikanische Frucht-Compagnie GmbH, established in Hamburg (Germany),

Internationale Fruchtimport Gesellschaft Weichert & Co., established in Hamburg,

represented by G. Schohe, lawyer, with an address for service in Luxembourg,

applicants,

v

Council of the European Union, represented by S. Marquardt and J.-P. Hix, acting as Agents,

and

Commission of the European Communities, represented by G. Braun and M. Niejahr, acting as Agents, with an address for service in Luxembourg,

defendants,

APPLICATION for compensation for the loss allegedly suffered by the applicants in the determination of their reference quantities for 1999,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: R. García-Valdecasas, President, P. Lindh and J.D. Cooke, Judges,

Registrar: D. Christensen, Administrator,

having regard to the written procedure and further to the hearing on 6 May 2003,

gives the following

Judgment

Legal framework

Regulation (EEC) No 404/93

1.
Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1), 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. A distinction was drawn between ‘Community bananas’ harvested in the European Community, ‘third-country bananas’ originating from third countries other than the African, Caribbean and Pacific (ACP) States, ‘traditional ACP bananas’ and ‘non-traditional ACP bananas’. Traditional ACP bananas and non-traditional ACP bananas corresponded respectively to the quantities of bananas exported by the ACP countries which did not exceed or which exceeded the quantities traditionally exported by each of those States, as laid down in the Annex to Regulation No 404/93.

2.
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 subject to a duty of ECU 100 per tonne and imports of non-traditional ACP bananas were 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 subject to duties of ECU 750 per tonne and ECU 850 per tonne, respectively.

3.
Article 19(1) of Regulation No 404/93 broke down the tariff quota, opening it as to 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).

Regulation (EEC) No 1442/93

4.
For the implementation of Regulation No 404/93, 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 (OJ 1993 L 142, p. 6, ‘the 1993 regime’). That arrangement remained in effect until 31 December 1998 (see paragraph 24 below).

5.
Article 3(1) of Regulation No 1442/93 defined as Category A or B ‘operators’ for the purposes of Articles 18 and 19 of Regulation No 404/93, economic agents who had engaged in one or more of the following activities on their own account:

‘(a) the purchase of green third-country and/or ACP bananas from the producers, or where applicable, the production, consignment and sale of such products in the Community;

(b) as owners, the supply and release for free circulation of green bananas and sale with a view to their subsequent marketing in the Community; the risks of spoilage or loss of the product being equated with the risk taken on by the owner;

(c) as owners, the ripening of green bananas and their marketing within the Community’.

6.
Operators carrying out activities (a) and (b) described in the preceding paragraph are referred to, in what follows, as ‘primary importers’ and ‘secondary importers’ respectively.

7.
Article 4(1) of Regulation No 1442/93 provided:

‘The competent authorities of the Member States shall draw up separate lists of operators in Categories A and B and the quantities which each operator has marketed in each of the three years prior to that preceding the year for which the tariff quota is opened, broken down according to economic activity as described in Article 3(1). ...’

8.
Under Article 5(1) of Regulation No 1442/93, each year the competent authorities were to establish for each Category A and Category B operator registered with them, the average quantities marketed during the three years prior to the year preceding that for which the tariff quota was opened, broken down by the economic activity carried out by the operator in accordance with Article 3(1) of that regulation.

9.
Article 5(2) of Regulation No 1442/93 provided that the quantities marketed were to be multiplied by weighting coefficients depending on the economic activity as referred to in Article 3(1) of that regulation as follows:

- activity (a): 57%,

- activity (b): 15%,

- activity (c): 28%.

10.
Article 6 of Regulation No 1442/93 provided:

‘Depending on the annual tariff quota and the total reference quantities of operators as referred to in Article 5, the Commission shall fix, where appropriate, a single reduction coefficient for each category of operators to be applied to operators' reference quantities to determine the quantity to be allocated to each.

The Member States shall determine the quantities for each operator in Categories A and/or B registered with them and shall notify the latter thereof ...’

Transitional measures following the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the Community

11.
In 1994 and 1995, the Commission adopted transitional measures in order to facilitate the transition from the arrangements existing in the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (hereinafter ‘the new Member States’) prior to their accession to the Community to those resulting from the application of the common organisation of the market in bananas. It thus adopted the following regulations:

- Commission Regulation (EC) No 3303/94 of 21 December 1994 introducing transitional measures for imports of bananas into Austria, Finland and Sweden in the first quarter of 1995 (OJ 1994 L 341, p. 46);

- Commission Regulation (EC) No 479/95 of 1 March 1995 introducing transitional measures for the application of the tariff quota arrangements for the import of bananas as a result of the accession of Austria, Finland and Sweden for the second quarter of 1995 (OJ 1995 L 49, p. 18);

- Commission Regulation (EC) No 1219/95 of 30 May 1995 adopting transitional measures for the application of the tariff quota arrangements for imports of bananas for the third quarter of 1995 as a result of the accession of Austria, Finland and Sweden (OJ 1995 L 120, p. 20);

- Commission Regulation (EC) No 1924/95 of 3 August 1995 laying down transitional measures for the application of the tariff quota arrangements for imports of bananas as a result of the accession of Austria, Finland and Sweden (OJ 1995 L 185, p. 24).

12.
Article 3(1) of Regulation No 479/95 provided:

‘The Community operators who have marketed in the new Member States during the three years of the reference period 1991, 1992 and 1993 bananas originating in third countries other than the [ACP] States, the ACP States and bananas harvested in the Community, shall request their registration with the competent authorities of the Member States by 15 March 1995 at the latest. ...’

13.
Article 4(1) of Regulation No 3303/94 and Article 1(1) of Regulations Nos 479/95 and 1219/95 provided that for the first, second and third quarters of 1995 respectively the competent authorities of the new Member States were to authorise the operators established on their territory who had imported bananas in 1991 and/or 1992 and/or 1993 to import bananas originating in third countries up to a limit of certain fixed quotas.

14.
The third and fourth subparagraphs of Article 4(1) of Regulation No 3303/94 and the third and fourth subparagraphs of Article 1(1) of Regulations Nos 479/95 and 1219/95 provided:

‘Each operator's authorisation to import may not cover a quantity greater than [30%, 27% and 25% respectively] of the average of the annual quantities imported by him in the years 1991, 1992 and 1993.

This authorisation shall not predetermine the reference quantity to be allocated to the operator in question for 1995 pursuant to Article 6 of [Regulation No 1442/93].’

15.
Article 1 of Regulation No 1924/95 provided for the opening of a tariff quota of 353 000 tonnes (net weight), additional to the tariff quota provided for in Article 18 of Regulation No 404/93, for 1995 for imports into the new Member States of bananas from third countries and of non-traditional ACP bananas. The quantities already imported into those three Member States in accordance with Regulations Nos 3304/94, 479/95 and 1219/95 were to be set against that additional quantity.

16.
Article 2 of Regulation 1924/95 provided:

For the fourth quarter of 1995, import licences shall be issued with a view to the release for free circulation...

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