Judgments nº T-267/94 of Court of First Instance of the European Communities, July 11, 1997

• Resolution Date: July 11, 1997
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-267/94

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

11 July 1997 (1) (Modification of the olive oil regime — No transitional period — Action for

damages)

In Case T-267/94,

Oleifici Italiani SpA, a company incorporated under the laws of Italy, established

in Ostuni (Italy), represented by Piero A.M. Ferrari and Massimo Merola, of the

Rome Bar, and by Antonio Tizzano, of the Naples Bar, with an address for service

in Luxembourg at the Chambers of Alain Lorang, 51 Rue Albert 1^er,

applicant,

v

Commission of the European Communities, represented by Eugenio de March,

Legal Adviser, acting as Agent, assisted by Alberto Dal Ferro, of the Vicenza Bar,

with an address for service in Luxembourg at the office of Carlos Gómez de la

Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for compensation for the loss allegedly suffered by the applicant

owing to the absence of any transitional measure in Commission Regulation (EEC)

No 1429/92 of 26 May 1992 amending Regulation (EEC) No 2568/91 on the

characteristics of olive oil and olive-residue oil and on the relevant methods of

analysis (OJ 1992 L 150, p. 17),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: R. García-Valdecasas, President, J. Azizi and M. Jaeger, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedure and following the oral procedure on 4

February 1997,

gives the following

Judgment

Legislative background

1.

By Regulation No 136/66/EEC of 22 September 1966, as amended on several

occasions, the Council established a common organization of the market in oils and

fats (OJ, English Special Edition 1965-1966, p. 221). Article 35a thereof, inserted

by Council Regulation (EEC) No 1915/87 of 2 July 1987 (OJ 1987 L 183, p. 7),

provides that products referred to in Article 1, which include oils, may be marketed

in the Community only under certain conditions.

2.

Article 1(2) of Commission Regulation (EEC) No 2568/91 of 11 July 1991 on the

characteristics of olive oil and olive-residue oil and on the relevant methods of

analysis (OJ 1991 L 248, p.1) defines the characteristics of lampante virgin olive oil.

That regulation expressly excluded from its scope olive oil packaged before the

date of its entry into force, that is 6 September 1991, and marketed up to 31

October 1992.

3.

The regulation at issue is Commission Regulation (EEC) No 1429/92 of 26 May

1992 amending Regulation (EEC) No 2568/91 on the characteristics of olive oil and

olive-residue oil and on the relevant methods of analysis (OJ 1992 L 150, p. 17),

which entered into force on 5 June 1992. The Commission thereby amended the

annexes to Regulation No 2568/91 defining the characteristics of the various types

of olive oil, especially the maximum content of trans-isomers. With effect from the

entry into force of Regulation No 1429/92, oil whose trans-isomer content exceeded

that ceiling could no longer be marketed in the Community. Nevertheless, 'in order

not to harm trade‘, the Commission made provision for oil packaged prior to the

entry into force of that regulation to be disposed of during a limited period (second

recital in the preamble to Regulation No 1429/92). It did so by making that

regulation inapplicable to olive oil packaged before its entry into force, that is, 5

June 1992, and marketed up to 31 October 1992 (second paragraph of Article 2 of

Regulation No 1429/92).

Facts and procedure

4.

In July 1991 the applicant imported 6 500 tonnes of lampante virgin olive oil from

Tunisia. In order to qualify for the inward processing procedure, it had the oil in

question temporarily imported, as from 29 October 1991, in several lots with a view

to refining it. Since it found itself unable to sell the product quickly, it placed a

certain tonnage of bulk refined oil in customs warehousing as from 1 April 1992.

920 tonnes were subsequently re-exported to non-member countries.

5.

With effect from the entry into force of Regulation No 1429/92, the remaining oil

in customs warehousing could no longer be marketed — as such — on the

Community market because it did not satisfy the new criteria introduced by

Regulation No 1429/92.

6.

By letter dated 21 December 1993, the applicant requested the defendant to take

a decision to compensate it for the loss which it had sustained as a result of

Regulation No 1429/92. It also stated that it would bring an action for failure to act

in the event that no solution could be found.

7.

Thereupon the defendant drew up and communicated to the applicant a draft

regulation retroactively amending Regulation No 1429/92 in such a way that it

would not be applicable to quantities of olive oil held under suspensory customs

arrangements, provided that those arrangements were 'regularized‘ before 31

December 1994.

8.

By letter dated 20 January 1994, the applicant informed the defendant that it would

not bring an action provided that the proposed measures entered into force within

a reasonable period.

9.

On 29 April 1994 the draft regulation had still not been put on the agenda of the

Management Committee. By letter of the same date the applicant formally

requested the defendant, pursuant to Article 175 of the EC Treaty, to take

measures to compensate it for the loss which it claimed it had sustained as a result

of the adoption of Regulation No 1429/92.

10.

By letter dated 5 May 1994, the defendant informed the applicant that it did 'not

accept any liability for the alleged losses‘ and that 'disposal of the oil in question

had to be carried out in compliance with the existing rules.‘

11.

On 18 July 1994 the applicant lodged the application originating these proceedings.

12.

By letter dated 13 February 1995, the defendant informed the Italian Ministry of

Finance that it was for the national authorities to decide whether or not to

authorize the sale of the olive oil in question.

13.

After the Italian authorities had given such authorization, the applicant exported

the bulk of the olive oil held in customs warehousing to countries outside the

Community in 1995 and 1996.

14.

Upon hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber)

decided to open the oral procedure and to adopt measures of organization of

procedure, pursuant to Article 64 of the Rules of Procedure, consisting of a request

to the parties to reply in writing to certain questions before the date of the hearing.

15.

Oral argument was heard from the representatives of the parties at the hearing on

4 February 1997, when they replied to oral questions put by the Court.

Forms of order sought

16.

In its application, the applicant claims that the Court should:

— declare, pursuant to Article 175 of the Treaty, that the defendant has failed

to act, inasmuch as it omitted to adopt specific measures to compensate the

applicant for the loss it allegedly sustained as a result of Regulation No

1429/92;

— order the defendant, under Articles 178 and 215 of the Treaty, to

compensate the applicant for the loss suffered by it owing to the fact that

Regulation No 1429/92 does not provide for transitional arrangements for

bulk olive oil placed in customs warehousing, such loss being estimated at

LIT 18 473 million, equivalent to the purchase price of the olive oil in

question, together with interest and storage, insurance and refinery costs

(LIT 16 083 million), together also with loss of earnings resulting from the

fact that it was impossible to sell on the oil (LIT 2 359 million);

— order the defendant to pay the costs.

17.

By letter dated 16 September 1996, the applicant reduced its claim for

compensation to LIT 7 345, corresponding to storage costs, interest on those costs

and costs incurred in respect of securities lodged.

18.

At the hearing the applicant abandoned its claim for a declaration that the

Commission had failed to act.

19.

The defendant contends that the Court should:

— dismiss the action brought under Articles 178 and 215 of the Treaty;

— order the applicant to pay the costs.

The compensation claim

20.

It should be recalled at the outset that, in accordance with settled case-law, for the

Community to incur liability, the applicant must prove the unlawfulness of the

conduct alleged against the institution concerned, the fact of damage and the

existence of a causal link between that conduct and the damaged complained of

(Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Joined

Cases T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others v

Commission [1995] ECR II-2941, paragraph 80; T-175/94 International Procurement

Services v Commission [1996] ECR II-0000, paragraph 44, and Case T-336/94 Efisol

v Commission [1996] ECR II-0000, paragraph 30).

21.

Where the conduct alleged is an omission on the part of a Community institution,

it may render the Community liable only if the institution concerned has infringed

a legal obligation to act under a provision of Community law (see, for example,

Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph

58).

22.

Where the alleged illegality concerns a legislative act, liability on the part of the

Community is dependent upon a finding that there has been a breach of a superior

rule of law for the protection of individuals. Finally, if the institution adopted the

legislative act in the exercise of a wide discretion, the Community cannot be

rendered liable unless the breach is explicit, that is to say, it is of a manifest and

serious nature (see Case 5/71 Schöppenstedt v Council [1971] ECR 975, paragraph

11; Joined Cases 83/76 and 94/76, 4/77, 15/77 and 40/77 HNL and Others v Council

and Commission [1978] ECR 1209, paragraph 6; Joined Cases C-104/89 and

C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061,

paragraph 12; Case T-572/93 Odigitria...