Judgments nº T-260/97 of Court of First Instance of the European Communities, June 08, 2000

• Resolution Date: June 08, 2000
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-260/97

(Common organisation of the markets – Bananas – Import arrangements – Non-contractual liability of the Community – Assessment of loss)

In Case T-260/97,

Camar Srl, established in Florence (Italy), represented by W. Viscardini Donà, M. Paolin and S. Donà, lawyers, with an address for service in Luxembourg,

applicant,

v

Council of the European Union, represented initially by J.P. Hix and A. Tanca, and subsequently by J.P. Hix and F. Ruggeri Laderchi, acting as Agents, with an address for service in Luxembourg,

and

Commission of the European Communities, represented initially by H. van Vliet, and subsequently by C. Van der Hauwaert and L. Visaggio, acting as Agents, and A. Dal Ferro, lawyer, with an address for service in Luxembourg,

defendants,

supported by

French Republic, represented by K. Rispal-Bellanger and C. Vasak, acting as Agents, with an address for service in Luxembourg,

intervener,

ACTION to determine the amount of damages which the Commission was ordered to pay the applicant following the annulment, by interlocutory judgment of the Court of First Instance in Joined Cases T‑79/96, T‑260/97 and T‑117/98 Camar and Tico v Commission and Council [2000] ECR II‑2193, of the Commission’s decision of 17 July 1997 rejecting the application by the applicant for transitional measures under Article 30 of 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),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of H. Legal, President, P. Mengozzi and I. Wiszniewska-Białecka, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 24 February 2005,

gives the following

Judgment

Legal framework

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) replaced the various earlier national arrangements with a common system of trade with third countries. In the version in force at the material time, the regulation provided for the opening of an annual tariff quota for imports of bananas from third countries and from Africa, the Caribbean and the Pacific (ACP). Article 15, which became Article 15a when it was amended by Council Regulation (EC) No 3290/94 of 22 December 1994 on the adjustments and transitional arrangements required in the agriculture sector in order to implement the agreements concluded during the Uruguay Round of multilateral trade negotiations (OJ 1994 L 349, p. 105), established a distinction between what are known as ‘traditional ACP bananas’ and ‘non-traditional ACP bananas’, depending on whether or not they formed part of the quantities, set out in the Annex to Regulation No 404/93, traditionally exported to the Community by the ACP States.

2 The first paragraph of Article 17 of Regulation No 404/93 provided that all banana imports into the Community were subject to the submission of an import licence.

3 Article 18(1) of Regulation No 404/93, as amended by Regulation No 3290/94, specified that a tariff quota of 2.1 million tonnes (net weight) was opened for 1994 and 2.2 million tonnes (net weight) for subsequent years for imports of bananas from third countries other than ACP countries (hereinafter ‘third-country bananas’) and of non-traditional ACP bananas. Within the framework of that tariff quota, imports of third-country bananas were subject to a duty of ECU 75 per tonne and imports of non-traditional ACP bananas were free of duty. In addition, Article 18(2) provided that imports outside the quota, whether non-traditional imports from ACP countries or from third countries, were subject to a duty calculated on the basis of the common customs tariff.

4 Article 19(1) of Regulation No 404/93 divided the tariff quota thus opened, allocating 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).

5 According to the second subparagraph of Article 19(2) of Regulation No 404/93, for the second half of 1993 each operator was to be issued import licences on the basis of half of the annual average quantity marketed between 1989 and 1991.

6 Article 30 of Regulation No 404/93 provided:

‘If specific measures are required after July 1993 to assist the transition from arrangements existing before the entry into force of this Regulation to those laid down by this Regulation, and in particular to overcome difficulties of a sensitive nature, the Commission, acting in accordance with the procedure laid down in Article 27, shall take any transitional measures it judges necessary.’

7 Article 27 of Regulation No 404/93 established what is known as the ‘Management Committee’ procedure. Article 20 of the same regulation called on the Commission to adopt detailed rules for trading arrangements with third countries in accordance with that procedure.

8 At the material time, the detailed rules governing trading arrangements with third countries were laid down in 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). Articles 4 and 5 of that regulation provided that the division of the tariff quota between Category A operators (66.5%) was to be based on the quantity of third-country and non-traditional ACP bananas marketed in the three years prior to that preceding the year for which the tariff quota was opened. The division of the quota between Category B operators (30%) was to be based on the quantities of Community or traditional ACP bananas marketed during a reference period determined in the same way as for Category A.

9 In accordance with the provisions of the second subparagraph of Article 19(2) of Regulation No 404/93, as well as Articles 4 and 5 of Regulation No 1442/93, the reference period was moved forward annually by one year. Therefore, while the reference period for 1993 imports covered the years 1989, 1990 and 1991, then for 1997 and 1998 imports it covered the years 1993, 1994 and 1995, and 1994, 1995 and 1996, respectively.

10 Furthermore, under Article 13 of Regulation No 1442/93, Category A and B operators could transfer the rights accruing from the import licences issued to them in that capacity to Category A, B or C operators during the term of validity of those licences.

11 The arrangements established by Regulation No 404/93 and by Regulation No 1442/93 are hereinafter referred to as ‘the 1993 arrangements’.

12 Council Regulation (EC) No 1637/98 of 20 July 1998 amending Regulation No 404/93 (OJ 1998 L 210, p. 28), which applied with effect from 1 January 1999, repealed Article 15a and amended Articles 16 to 20 of Regulation No 404/93.

13 Article 18 of Regulation No 404/93, as amended by Regulation No 1637/98, opened an additional tariff quota for imports of third-country bananas and non-traditional ACP bananas (Article 18(2)), over and above the tariff quota of 2.2 million tonnes which was consolidated within the framework of the World Trade Organisation (Article 18(1)).

14 The first subparagraph of Article 19(1) of Regulation No 404/93, as amended by Regulation No 1637/98, provided that henceforth ‘[t]he tariff quotas indicated in Article 18(1) and (2) and imports of traditional ACP bananas [would] be managed in accordance with the method based on taking account of traditional trade flows (traditionals/newcomers)’.

15 Article 20 of Regulation No 404/93, as amended by Regulation No 1637/98, made the Commission responsible for adopting provisions for the implementation of the new import arrangements which, under Article 20(d), had to include, in particular, ‘any specific provisions needed to facilitate the switch from the import arrangements applying on and after 1 July 1993 to the [new] arrangements’.

16 On the basis of Article 20, the Commission adopted Regulation (EC) No 2362/98 of 28 October 1998 laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community (OJ 1998 L 293, p. 32), which replaced Regulation No 1442/93 with effect from 1 January 1999.

17 The first paragraph of Article 3 of Regulation No 2362/98 defined traditional operators in the following terms:

‘For the purposes of this regulation, “traditional operators” shall mean economic agents established in the European Community during the period for determining their reference quantities, and also at the time of their registration under Article 5 below, who have actually imported a minimum quantity of third-country and/or ACP-country bananas on their own account for subsequent marketing in the Community during a set reference period.’

18 Article 4(1) of Regulation No 2362/98 provided that ‘[e]ach traditional operator registered in a Member State in accordance with Article 5 [would] receive, for each year and for all the origins listed in Annex I [third countries and ACP countries], a single reference quantity based on the quantities of bananas actually imported during the reference period’. Article 4(2) specified that, for imports carried out in 1999 under the tariff quotas or as traditional ACP bananas, the reference period would comprise the years 1994, 1995 and 1996.

19 The arrangements established as a result of the amendments introduced by Regulation No 1637/98 and Regulation No 2362/98 are hereinafter referred to as ‘the 1999 arrangements’.

20 Under the 1999 arrangements, the further application of the reference quantities notified to traditional operators for 1999 was confirmed until 30 June 2001 by, in succession, Commission Regulation...