JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
6 March 2003 (1) (Bananas - Common organisation of the markets - Decision 94/800/EC - Regulation (EC) No 478/95 - Export licence scheme - Action for damages)
In Case T-57/00,
Banan-Kompaniet AB, established in Stockholm (Sweden),
Skandinaviska Bananimporten AB, established in Arsta (Sweden),
represented by B. O'Connor, Solicitor, 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 initially by P. Oliver and C. Van der Hauwaert, acting as Agents and, subsequently, L. Visaggio and K. Fitch, acting as Agents, with an address for service in Luxembourg,
defendants,
APPLICATION for compensation for the damage allegedly suffered by the applicants by reason of the introduction of the export licence scheme by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1) and by Commission Regulation (EC) No 478/95 of 1 March 1995 on additional rules for the application of Council Regulation (EEC) No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh, Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 12 September 2002
gives the following
Judgment
Legal Framework
1.
Title IV 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) replaced the various national systems with a common system of trade with third countries.
2.
Under the first paragraph of the original version of Article 17 of Regulation No 404/93:
Any importation of bananas into the Community shall 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.
3.
Article 18(1) of the original version of Regulation No 404/93 provided for a tariff quota of two million tonnes (net weight) to be opened each year for imports of third-country bananas from non-ACP States (third-country bananas) and non-traditional imports of bananas from ACP States (non-traditional ACP bananas). Under that quota, imports of third-country bananas were subject to a levy of ECU 100 per tonne and non-traditional ACP bananas to a zero duty.
4.
Article 19(1) of Regulation No 404/93 subdivided the tariff quota opened as follows: 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.
Article 20 of Regulation No 404/93 gave the Commission responsibility for adopting detailed rules for the implementation of Title IV.
6.
The Commission accordingly adopted 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).
7.
On 19 February 1993 the Republic of Colombia, the Republic of Costa Rica, the Republic of Guatemala, the Republic of Nicaragua and the Republic of Venezuela requested the Commission to open consultations under Article XXII:1 of the General Agreement on Tariffs and Trade (GATT) in relation to Regulation No 404/93. The consultations were unsuccessful and therefore in April 1993 those States initiated the dispute-settlement procedure provided for in Article XXIII:2 of the GATT.
8.
On 18 January 1994 the panel set up under that procedure submitted a report which concluded that the import system introduced by Regulation No 404/93 was incompatible with the GATT rules. The report was not adopted by the parties to the GATT.
9.
On 28 and 29 March 1994 the Community reached an agreement with the Republics of Colombia, Costa Rica, Nicaragua and Venezuela, known as the Framework Agreement on Bananas (the Framework Agreement).
10.
Point 1 of the second part of the Framework Agreement sets the basic overall tariff quota at 2 100 000 tonnes for 1994 and at 2 200 000 tonnes for 1995 and subsequent years, without prejudice to any increase due to enlargement of the Community.
11.
Point 2 lays down the percentages of that quota allocated to Colombia, Costa Rica, Nicaragua and Venezuela, respectively. Those States receive 49.4% of the total quota, while the Dominican Republic and the other ACP States are granted 90 000 tonnes for non-traditional imports, the balance being allocated to other third countries.
12.
Point 6 provides in particular:
The supplying countries with country quotas may deliver special export certificates for up to 70% of their quota, which, in turn, constitute a prerequisite for the issuance, by the Community, of certificates for the importation of bananas from said countries by Category A and Category C operators.
Authorisation to deliver the special export certificates shall be granted by the Commission in order to make it possible to improve regular and stable trade relations between producers and importers and on the condition that the export certificates will be issued without any discrimination among the operators.
13.
Point 7 fixes the in-quota customs duty at ECU 75 per tonne.
14.
Points 10 and 11 provide:
This agreement will be incorporated into the Community's Uruguay Round Schedule.
This agreement represents a settlement of the dispute between Colombia, Costa Rica, Venezuela and Nicaragua and the Community on the Community's banana regime. The parties to this agreement will not pursue the adoption of the GATT panel report on this issue.
15.
Points 1 and 7 of the Framework Agreement were incorporated in Schedule LXXX to GATT 1994, which lists the Community customs concessions. GATT 1994 in turn constitutes Annex 1A to the Agreement establishing the Word Trade Organisation (the WTO). An annex to Schedule LXXX reproduces the Framework Agreement.
16.
On 22 December 1994 the Council unanimously adopted Decision 94/800/EC concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).
17.
In accordance with Article 1(1) of that decision, the Agreement establishing the WTO and also the Agreements in Annexes 1, 2 and 3 to that Agreement, of which GATT 1994 is one, have been approved on behalf of the European Community with regard to that portion of them which falls within the competence of the Community.
18.
On 22 December 1994 the Council adopted Regulation (EC) No 3290/94 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). The regulation includes Annex XV relating to bananas, which provides that Article 18(1) of Regulation No 404/93 is to be amended so that, for 1994, the tariff quota is fixed at 2 100 000 tonnes and, for the following years, at 2 200 000 tonnes. In the framework of that tariff quota, imports of third-country bananas are to be subject to a customs duty of ECU 75 per tonne.
19.
On 1 March 1995 the Commission adopted Regulation (EC) No 478/95 on additional rules for the application of Regulation No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending Regulation No 1442/93 (OJ 1995 L 49, p. 13). Regulation No 478/95 lays down the measures necessary for implementation, no longer on a transitional basis, of the Framework Agreement.
20.
Article 1(1) of Regulation No 478/95 provided:
The tariff quota for imports of bananas from third countries and non-traditional ACP bananas referred to in Articles 18 and 19 of [Regulation No 404/93] shall be divided into specific shares allocated to the countries or groups of countries referred to in Annex I ...
21.
Annex I contained three tables: the first sets out the percentages of tariff quota reserved to the Latin American States in the Framework Agreement; the second divides the quota of 90 000 tonnes of non-traditional ACP bananas and the third provides for all the other third countries to receive 50.6% of the total quota.
22.
Article 3(2) of Regulation No 478/95 provided:
For goods originating in Colombia, Costa Rica or Nicaragua, the application for an import licence of Category A or C, as referred to in Article 9(4) of [Regulation No 1442/93], shall also not be admissible unless it is accompanied by an export licence currently valid for a quantity at least equal to that of the goods, issued by the competent authorities ....
23.
By judgment given on 10 March 1998 in Case C-122/95 Germany v Council [1998] ECR I-973, the Court of Justice annulled the first indent of Article 1(1) of Council Decision 94/800 to the extent that the Council thereby approved the conclusion of the Framework Agreement, in so far as the latter exempts Category B operators from the export licence system for which it...
