OPINION OF ADVOCATE GENERAL
STIX-HACKL
delivered on 16 April 2002 (1)
Case C-312/00 P
European Commission
v
Camar Srl and Tico Srl
((Appeal – Admissibility of new submissions – Common organisation of the markets – Bananas – Request for additional import licences – Adjustment of tariff quota where necessary – Transitional arrangements – Admissibility of an action for annulment – Non-contractual liability of the Community))
I ─ Introduction
1. This appeal is brought by the Commission against the judgment delivered on 8 June 2000 by the Court of First Instance in Cases T-79/96, T-260/97 and T-117/98. (2) In that judgment the Court of First Instance found inter alia that the Commission failed to fulfil its obligations by failing to take certain measures provided for in Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (3) ( the Regulation) which would have benefited two Italian undertakings, Camar and Tico , which import bananas. In Case T-260/97 the Commission was ordered to pay compensation for the damage suffered by Camar as a result of its refusal to adopt the measure.
II ─ Facts established by the Court of First Instance
2. The following facts are apparent from the judgment of the Court of First Instance: (4) Camar Srl was set up in 1983 by the Italian investment group De Nadai in order to import Somalian bananas into Italy. Until 1994 it was the sole importer and until 1997 the main importer of bananas from Somalia. Between 1984 and 1990 banana production reached its peak in Somalia, attaining an annual production of 90 000 to 100 000 tonnes. Part of that production was imported into Europe (51 921 tonnes in 1988, 59 388 tonnes in 1989 and 57 785 tonnes in 1990) and, in particular, into Italy by Camar (45 130 tonnes in 1990). On 31 December 1990 civil war broke out in Somalia and the normal flow of Camar's imports was interrupted. From the outbreak of war until the common organisation of the market came into force in July 1993 Camar supplied the Italian market by obtaining supplies from two ACP countries, Cameroon and the Windward Islands, and from certain third countries from which it had already been importing bananas since 1988. From the introduction of the common organisation of the market in July 1993 to the end of 1997 Camar was issued with category A import licences. In 1997 Camar was issued with import licences for a quantity of 7 545.723 tonnes for category A and 2 140.718 tonnes for category B. (5) During that period the quantities of bananas imported from Somalia by Camar amounted to approximately 482 tonnes in 1993, 1 321 tonnes in 1994, 14 140 tonnes in 1995 and 15 780 tonnes in 1996. In 1997 banana production in Somalia was expected to be around 60 000 tonnes, but following climatic problems and in the absence of any suitably equipped port other than Mogadishu, exports from Somalia amounted only to 21 599 tonnes, 12 000 of which were marketed by Camar.Since the common organisation of the market came into force, Camar has repeatedly requested the Commission to increase its third country banana quota by an amount equal to the difference between the traditional quantity of Somalian bananas provided for by the Regulation (60 000 tonnes) and the quantities which Camar actually imported or could have imported into the Community, and to issue it with licences corresponding to the differences between those quantities.
III ─ Legal framework
3. In accordance with the judgment of the Court of First Instance, the legal framework is as follows: (6)
4. Regulation No 404/93 replaced the various previous national arrangements with a common trading system with third countries. In the version in force at the material time, the Regulation provided for the opening of an annual tariff quota for banana imports from third countries and from the African, Caribbean and Pacific (ACP) countries. Article 15, which became Article 15a when the Regulation 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, (7) established a distinction between traditional and non-traditional bananas depending on whether they formed part of the quantities, set out in the Annex to the Regulation, traditionally exported by the ACP States to the Community. For Somalia, the traditional quantity was 60 000 tonnes.
5. Article 18(1) of the Regulation (8) provided that a tariff quota of 2.1 million tonnes (net weight) would be opened for 1994 and 2.2 million tonnes (net weight) for each subsequent year 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 levy of ECU 75 per tonne and imports of non-traditional ACP bananas to a zero duty. Moreover, the second indent of Article 18(2) provided that imports outside the tariff quota, whether of non-traditional ACP bananas or of third country bananas, were subject to a levy calculated on the basis of the Common Customs Tariff.
6. Article 19(1) of the Regulation 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).
7. According to the second subparagraph of Article 19(2) of the Regulation, for the second half of 1993 each operator was to be issued licences on the basis of half of the annual average quantity marketed between 1989 and 1991.
8. Article 19(4) of the Regulation provided that if the tariff quota was increased the additional available quantity would be allocated to importers in the categories referred to in Article 19(1).
9. Under Article 16(1) and (3) of the Regulation, a forecast supply balance was to be prepared annually of production and consumption in the Community and of imports and exports. Where necessary, in particular to take account of the effects of exceptional circumstances affecting production or import conditions, the balance could be adjusted during the marketing year.
10. The fourth subparagraph of Article 18(1) of the Regulation provided for a possible increase in the volume of the annual quota on the basis of the supply balance referred to in Article 16, and it referred to Article 27 of the Regulation in that regard.
11. Article 20 of the Regulation gave the Commission the power to adopt and adjust the forecast supply balance referred to in Article 16 and to adopt detailed rules for the trading system with third countries.
12. Article 30 of the Regulation provides: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.
13. Article 27 of the same regulation authorised the Commission to adopt measures for the implementation of the Regulation in accordance with the management committee procedure.
14. At the material time, the detailed rules governing the system for importing bananas into the Community were laid down in Commission Regulation (EEC) No 1442/93 of 10 June 1993. (9) 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 or non-traditional ACP bananas marketed during the three years prior to the year 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 calculated in the same way as for category A.
15. In accordance with the provisions of the second subparagraph of Article 19(2) of the Regulation and Articles 4 and 5 of Regulation No 1442/93, the reference period was moved forward annually by one year. Therefore, if the reference period for 1993 imports covered the years 1989, 1990 and 1991, then for 1997 imports it covered the years 1993, 1994 and 1995.
16. Between 1994 and 1996, following tropical storms Debbie, Iris, Luis and Marilyn which had damaged the banana plantations in Martinique, Guadeloupe, St Vincent and the Grenadines, St Lucia and Dominica, the Commission adopted a number of regulations. (10) The regulations increased the tariff quota and introduced specific rules for the distribution of the additional quantity among operators including or directly representing the banana producers affected by the storm damage. Those distribution rules derogated from the rules set out in Article 19(4) of the Regulation.
17. The Commission adopted the above regulations on the tropical storms on the basis of Article 16(3) and Articles 20 and 30 of the Regulation.
18. The reasons given for adopting those regulations were that the tropical storms had caused enormous damage to the banana plantations in the Community regions of Martinique and Guadeloupe and in the ACP States of St Vincent and the Grenadines, St Lucia and Dominica, that the impact of those exceptional circumstances on production in the regions hit would continue to be felt for several months and considerably affect imports and supplies to the Community market, and that there was a risk that this would result in a steep increase in market prices in some regions of the Community.
19. As to the system for increasing the tariff quota provided for in Article 16(3) of the Regulation, the Commission stated in the fourth recital to the regulations on the tropical storms:Whereas the adaptation of the tariff quota must permit adequate supplies to the Community market ... and provide compensation to operators who include or directly represent banana producers who suffered damage and who, in addition, in the absence of appropriate measures, risk losing their traditional outlets on the Community market on a long-term basis.
20. In the fifth recital to those regulations the Commission stated:... Whereas the measures to be taken should have a specific transitional nature, within the meaning of Article 30 of Regulation ... No 404/93; whereas, prior to the entry into force of the new common market organisation on 1 July 1993, existing national market organisations, in order to cope with urgent cases or exceptional circumstances such as the tropical storms Iris, Luis and Marilyn, included provisions ensuring supplies to the market from other suppliers while safeguarding the interests of operators who are victims of such exceptional events.
IV ─ The cases before the Court of First Instance
21. By order of 25 March 1999, the Court of First Instance joined Cases T-79/96, T-260/97 and T-117/98 on account of the connection between them.
A ─ Case T-79/96
22. On 24 January 1996 Camar put the Commission on notice that it was calling on it to act, within the meaning of the second paragraph of Article 175 of the EC Treaty (now Article 232 EC), with regard to the applications submitted for the 1996 marketing year. Having received no reply within the period provided for, Camar brought an action for declaration of failure to act and for compensation on 28 May 1996.
23. In Case T-79/96 Camar claimed inter alia that the Court of First Instance should:
─ declare that, by failing to take the steps necessary to enable the applicant to overcome its supply problems resulting from the crisis in Somalia, the Commission had infringed Article 30 of the Regulation and Article 40(3) of the EC Treaty (now, after amendment, Article 34(2) EC);
─ declare that the Commission was under a duty to take appropriate measures for the future;
─ order that the Commission pay compensation for the damage suffered by the applicant as a result of its failure to act.
24. In Case T-79/96 the Court of First Instance declared that, by failing to take the necessary measures provided for in Article 30 of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas with respect to the applicant, the Commission had failed to fulfil its obligations under that article. It dismissed the action for compensation as inadmissible.
B ─Case T-260/97
25. In Case T-260/97 Camar claimed inter alia that the Court of First Instance should:
─ annul the Commission's decision of 17 July 1997 rejecting its application for transitional measures in the context of the tariff quota system for banana imports;
─ order the Commission to pay compensation for past and future damage resulting from its refusal to take account, when calculating category B licences, of its reference quantity under normal circumstances for the three years immediately preceding the outbreak of civil war in Somalia;
─ in the alternative, order the Council to pay compensation for failing to adopt special provisions under the Regulation to deal with situations such as those which the applicant had faced.
26. In Case T-260/97 the Court of First Instance annulled the Commission's decision of 17 July 1997 rejecting the application which the applicant submitted on the basis of Article 30 of the Regulation.
27. In addition, it ordered the Commission to pay compensation for the damage suffered by the applicant as a result of the decision of 17 July 1997. It ordered the Commission to pay 90% and the Council to pay 10% of the costs in those proceedings.
C ─Case T-117/98
28. By letter of 5 March 1998 Camar and Tico asked the Commission to adjust the tariff quota, as provided for in Article 16(3) of the Regulation, for the first two quarters of 1998 to take account of imports from Somalia in 1996 following the reduction in the quantities of Somalian bananas available as a result of the meteorological phenomenon known as El Niño which had damaged banana plantations in Somalia between October 1997 and January 1998.
29. By letters dated 23 and 24 April 1998 the Commission informed the two companies that it did not intend to comply with the request to adjust the tariff quota. It had not noted any shortage in supplies to the Community market either during the second half of 1997 or during the first half of 1998. Moreover, it was impossible to distinguish, in regard to their request, between damage caused by climatic problems and other difficulties affecting Somalian banana exports, resulting in particular from the unreliable loading structures and transport conditions.
30. In Case T-117/98 Camar and Tico claimed inter alia that the Court of First Instance should:
─ annul the Commission's decision rejecting the application for adjustment of the tariff quota for banana imports under Article 16(3) of the Regulation;
─ order the Commission to pay compensation.
31. In Case T-117/98 the Court of First Instance annulled the Commission's decision of 23 April 1998 rejecting the application which the applicants submitted on the basis of Article 16(3) of the Regulation. It declared the action for compensation inadmissible.
V ─ Forms of order sought and grounds of appeal
32. The Commission has brought an appeal before the Court of Justice against the judgment delivered by the Court of First Instance and claims that the Court should:
─ set aside the judgment;
─ declare the action in Case T-79/96 and the action for annulment and for compensation in Case T-260/97 unfounded;
─ declare the action in Case T-117/98 inadmissible or, in the alternative, unfounded;
─ order the applicants in the proceedings before the Court of First Instance to pay the costs of the proceedings before that Court and those of the present proceedings.
33. The Commission relies on the following grounds in its appeal:
34. With regard to Cases T-79/96 and T-260/97, it maintains that the Court of First Instance incorrectly applied the conditions necessary for the application of Article 30 of the Regulation (second ground of appeal).
35. With regard to Case T-117/98, it maintains that the Court of First Instance made an incorrect appraisal of the admissibility of an action for annulment against the refusal to adopt a measure (first ground of appeal) and that it misinterpreted and misapplied the criteria laid down in Article 16(3) of the Regulation (third ground of appeal).
36. In its response the Council, as defendant in Case T-260/97, argues that, in its opinion, the Court of First Instance made an incorrect appraisal of the conditions for establishing the Community's non-contractual liability and claims that the Court should amend the judgment of the Court of First Instance and that Camar and Tico should pay the costs.
37. The French Republic, which intervened in the proceedings in Case T-79/96 in support of the Commission and in Case T-260/97 in support of the Commission and the Council, claims that the Court should set aside the judgment, dismiss the actions and order Camar and Tico to pay the costs.
38. Camar and Tico, and the Italian Republic which intervened in support of Camar and Tico in the proceedings in Case T-79/96, contend that the Court should dismiss the appeal and order the Commission to pay the costs.
VI ─ The individual grounds of appeal
A ─ First ground of appeal: admissibility of the action for annulment against the Commission's refusal to adopt measures laid down in Article 16(3) of the Regulation (Case T-117/98)1. Submissions of the parties2. Assessment[i]t follows that the contested measure is of concern to the applicants only in their objective capacity as traders engaged in the marketing of bananas from third countries in the same way as any other trader in an identical position.... The regulation ... thus affects every importer wishing to import bananas from Côte d'Ivoire and the fact that the applicants currently import a large proportion of Côte d'Ivoire's bananas does not amount to circumstances differentiating them from other importers.
20 Case T-47/95 (cited in footnote 12, paragraph 47).
39. This relates to the request that Camar and Tico made to the Court of First Instance to contest the Commission's decision by which it refused to adopt a regulation. In such a case the applicants must demonstrate that although the regulation in question would not have been addressed to them, it would have been of direct and individual concern to them.
40. The Commission , the Council and the French Government submit that by declaring the action for annulment admissible, the Court of First Instance has infringed its own case-law and that of the Court of Justice.
41. For those parties it is clear that the measure sought by Camar, namely the increase in the quota for imports of bananas from third countries and non-traditional ACP countries, could only have been adopted as a measure of general, abstract application, that is to say, as a legislative measure which, according to case-law, may be contested only on condition that the number or the identity of the persons to whom such an act would apply at any given time may be determined with sufficient certainty. That test would be carried out on the basis of an objective factual and legal situation which would be defined by the purpose of the measure in question.
42. The Commission, the Council and the French Government point out that the admissibility of an action brought by an undertaking cannot depend on the position held by that undertaking on the market. Since markets evolve, access to the legal protection enshrined in the Treaty would therefore depend on an assessment of the situation that happened to obtain on the market. Consequently, the leading undertakings would be in a more favourable position which would be contrary to the prohibition on discrimination.
43. Moreover, the Council maintains that if the circumstances had actually required an adjustment of the tariff quota within the meaning of Article 16(3) of the Regulation, the Commission would not have been obliged to allocate the additional quantities to importers of Somalian bananas. Contrary to what the Court of First Instance states in paragraph 96 of its judgment, Camar and Tico would not have been the main ones to benefit from the Regulation which the Commission refused to adopt.
44. Camar and Tico , and the Italian Government , submit that the conclusions of the Court of First Instance concerning the admissibility of the action for annulment against the Commission's refusal to apply Article 16(3) of the Regulation cannot be contested in an appeal because such conclusions are based on facts which affect the position of both undertakings on the market.
45. In the alternative, those parties maintain that the Court of First Instance applied the relevant case-law correctly. In that regard they maintain in particular that if the Commission had adopted the measures sought, it would have had to provide not only for an increase in the tariff quota but also for special rules for the distribution of the additional quantities, which would have benefited Camar and Tico.
46. This ground raises the question whether the Court of First Instance has assessed the admissibility of the action for annulment correctly and whether the test for individual concern for the purposes of the fourth paragraph of Article 230 EC has been applied correctly.
47. In paragraph 96 of the judgment, the Court of First Instance examines whether there are circumstances by reason of which the Commission's regulation differentiated Camar and Tico from all other persons concerned. It bases its reasoning on the point, crucial to the decision, that the main importer of Somalian bananas was Camar until 1997 and Tico from the fourth quarter of 1997. In that Court's view, the reduction in the quantities of bananas available caused by the floods in Somalia thus particularly affected those undertakings. The Court of First Instance concludes that those undertakings would have also been the main ones to benefit from the increase in the tariff quota.
48. Those circumstances were sufficient for the Court of First Instance to assume that the Commission's refusal to adjust the quota did not affect [Camar and Tico] in the same way as any other importer of Somalian bananas, but affected them by reason of circumstances in which they were differentiated from all other operators trading on the same market.
49. According to consistent case-law, there must be certain attributes peculiar to applicants or a particular factual situation which differentiate such applicants from all other persons. (11)
50. First of all, the Court of First Instance is correct in so far as Camar and Tico were not affected in the same way as the other undertakings. However, that statement also applies to the other undertakings in that no undertaking ─ even if it has the same share of the market ─ is actually affected by a measure (in this case the refusal to adjust a quota) in the same way as another.
51. For the fourth paragraph of Article 230 EC to be applied correctly, there has to be instead a particular form of legal concern. To that effect, the Court of First Instance itself found the following with reference to banana importers: (12)
52. Although it is true that Camar and Tico were differentiated from others in so far as they were affected in a particularly serious way, the crucial question is, rather, whether that situation is also a determining factor under settled case-law. Although in assessing the admissibility of an action for annulment the case-law of the Court of Justice focuses expressly on the effects of a measure, (13) that does not mean that the only factor to be taken into account is how an economic position is adversely affected.
53. Similarly, the fact that Camar and Tico were the biggest importers is not sufficient in itself. According to the judgment in Extramet , (14) a set of factors is also required constituting ... a situation which is peculiar to the applicant, but these were not established in the present case.
54. Unlike the legal commentators who have given a broad interpretation (15) to the judgment in Codorniu , both the Court of First Instance and the Court of Justice have interpreted that judgment restrictively in their case-law. (16)
55. Accordingly, it should be pointed out that to possess specific rights and subsequently be prevented from exercising them was regarded as decisive by the Court of Justice in Codorniu . (17) The relevance of specific rights as opposed to the economic situation is shown both by the Deutz case, (18) which was decided before the judgment in Codorniu ,and the Asocarne case, which was decided with express reference to Codorniu and in which the action for annulment was declared inadmissible expressly because the [contested] regulation had not adversely affected specific rights. (19)
56. Likewise, the Court of First Instance itself found in Terres Rouges :
57. It can be inferred from that statement that the quantity an undertaking imports is immaterial as regards whether that undertaking has locus standi to bring an action.
58. Moreover, the Court of First Instance held in Van Parijs (21) that ... [the fact that certain operators] are economically more affected by a measure than their competitors does not suffice for them to be regarded as individually concerned by that measure.
59. It follows that even if Camar and Tico had been economically more affected than their competitors, that still would not mean that they had locus standi .
60. Furthermore, in Buralux the Court of Justice did not grant locus standi even where the appellants were practically the only operators who carried out the commercial activities affected by the rule. (22)
61. Similarly, the Court of Justice held in Sadam that the fact that, when Regulation No 2613/97 entered into force, the appellants were its only actual addressees as far as producers of beet sugar in southern Italy are concerned is not in itself sufficient for them to be regarded as individually concerned by the regulation. (23)
62. Even if it is assumed that Camar and Tico had to suffer serious consequences because the Commission had not adopted specific measures, that fact alone is not sufficient. In Antillean Rice Mills the Court also required the applicant to have been affected by the safeguard measures in question by reason of attributes distinguishing it from all other economic agents. (24)
63. Thus, the case-law of the Court of Justice and of the Court of First Instance is based on the assumption that economic interests do not constitute specific rights within the meaning of the judgment in Codorniu . (25)
64. It can be inferred from the above that an undertaking does not have locus standi simply because its competitive position is affected, even if it is affected in a particularly serious manner.
65. The Commission and the Council were correct to point out that the test for individual concern as understood by the Court of First Instance is also impracticable and detrimental to legal certainty. On that interpretation, locus standi would depend on fluctuations in the share of the market and consequently would have to be assessed differently at different times. Moreover, not even the undertaking just behind the market leader would have locus standi . Furthermore, a test which is based directly or indirectly on market power would lead to unequal treatment of large and small undertakings. (26)
66. Contrary to the case-law referred to above and the observations made in that regard, it was clearly decisive for the Court of First Instance that Camar and Tico were the main importers at a particular time. However, in adopting that position, that Court focused on a fact which cannot be relied on according to consistent case-law, the fact that locus standi does not only depend on whether one undertaking is more affected than others, that is to say whether it is affected merely to a different degree.
67. Even the fact that Camar not only held the most important market position at a particular time but did so over an extended period makes no difference in this regard.
68. Since Camar and Tico were not in a legal situation comparable to that of Codorniu , that is to say in a position which is legally protected (which is the crucial matter in deciding this case), the solution in Codorniu cannot be transferred to this case.
69. Accordingly, since the Court of First Instance did not apply Article 230(4) EC correctly, this ground of appeal is well founded. I therefore propose that the Court of Justice should declare the action in Case T-117/98 inadmissible and set aside the judgment.
B ─ Second ground of appeal: incorrect application of Article 30 of the Regulation (Cases T-79/96 and T-260/97)1. Submissions of the parties2. Assessment(a) Cause of the difficultiesAs for the supply problems pleaded by the applicant, it should be pointed out first of all that, as regards the possibility of interchanging sources of banana supplies, the Italian arrangements before Regulation No 404/93 came into force were considerably more flexible than the Community system. As the applicant stresses, without being disproved by the Commission, the Italian arrangements allowed unlimited quantities of ACP bananas to be imported free of customs duties. Furthermore, as regards the import of third country bananas, even though the Italian arrangements provided for a quota, operators could obtain such a quota without reference to the quantities and origin of the bananas they had imported in previous years. The common organisation of the market in bananas, on the other hand, which was established by Regulation No 404/93, provides that ACP bananas may enter the Community market free of customs duties only until the traditional quantities or the tariff quota have been used up, and that each operator may obtain import licences only according to the origin of the bananas (Community, traditional ACP countries, third countries and non-traditional ACP countries) and on the basis of the average quantities imported over a reference period. Clearly, the introduction of the common organisation of the market limited the scope for imports which existed under Italian legislation prior to Regulation No 404/93.... At the hearing the Commission accepted that Camar might have experienced difficulties as a result of the introduction of the Community system.Consequently, even if the applicant's difficulties in obtaining supplies of bananas were associated with the civil war which occurred in Somalia at the end of 1990, they are a direct consequence of the introduction of the common organisation of the market because the system in fact significantly reduced the scope provided under the previous Italian arrangements for Camar to replace the shortfall in Somalian bananas.(b) Severity of the difficultiesThe Community institutions are required to act in particular
47 Emphasis added. when the transition to the common organisation of the market infringes certain traders' fundamental rights protected by Community law, such as the right to property and the right to pursue a professional or trade activity.As the Court held ... , the Commission, or the Council, as the case may be, are, however, obliged to take action if the difficulties associated with the transition from national arrangements to the common organisation of the market so require.
48 Judgment cited in footnote 29, paragraph 38.
70. The Commission and the French Government complain that the Court of First Instance (27) merely confined itself to finding that the legal situation in Italy before the Regulation came into force was considerably more flexible, without examining the specific effects of that legal situation on Camar's position. In particular, it should have been examined whether that legal situation would have enabled Camar to overcome the difficulties arising in 1995 and 1996 in connection with the imports from Somalia.
71. The Commission and the French Government also submit that the Court of First Instance is wrong to assume that economic survival, that is to say the threat to the [operator's] existence (28) is not a condition necessary for the application of Article 30 of the Regulation and that the Commission should also have intervened in cases other than the present case. In that regard the Commission and the French Government rely on paragraph 43 of the judgment in T. Port , (29) in which the Court of Justice held: [o]n the other hand, Article 30 of the Regulation authorises and, depending on the circumstances, requires the Commission to lay down rules catering for cases of hardship arising from the fact that importers of third-country bananas or non-traditional ACP bananas meet difficulties threatening their existence ....
72. Camar and Tico , and the Italian Government , maintain that the Commission is wrong to assume that the Court of First Instance did not examine the legal situation previously in force in Italy to ascertain whether it offered Camar a solution to the difficulties which arose in 1995 and 1996.
73. Moreover, Camar and Tico, and the Italian Government, interpret the judgment in T. Port differently from the Commission in so far as they believe that the subject-matter of that judgment is not whether one of the conditions for application of Article 30 of the Regulation concerns difficulties which pose a danger to existence but rather whether Article 30 and Article 16(3) of the Regulation conflict with one another. Therefore, paragraph 43 of the judgment in T. Port must be understood in the light of the relevant question referred for a preliminary ruling in that case.
74. It should be pointed out first of all that Article 30 of the Regulation does not constitute anything unusual in terms of the Community's agricultural law. Other market organisations contain comparable provisions. (30)
75. In the Commission's view, Article 30 of the Regulation contains two constituent requirements: first, the difficulties must arise as a result of the transition from the old system to the new system and, secondly, the difficulties must constitute a danger to the operator's survival.
76. However, the wording of Article 30 of the Regulation does not reflect those requirements in such clear terms. Nevertheless, it can be inferred from the fact that the measures to be taken by the Commission are intended to assist the transition that the difficulties must be caused by the transition from the old to the new legal situation.
77. As to the difficulties which are to be overcome by such measures, the wording of Article 30 of the Regulation is unclear in so far as the insertion of the phrase in particular could mean that overcoming difficulties may also be understood simply as one way of assisting the transition. However, that interpretation might be contradicted by the conjunction and used in the German version, for instance, which suggests that there are two cumulative requirements. However, that conjunction does not appear in certain language versions (31) and/or the whole phrase concerning the difficulties is placed between commas. (32)
78. In any case, it follows from the relevant recital that the purpose of the measures to be taken by the Commission is to overcome the difficulties. (33)
79. Accordingly, Article 30 of the Regulation is interpreted in the case-law of the Court of Justice (34) and the Court of First Instance (35) in such a way that it is applicable where both requirements for application (specific cause and severity of the difficulties) are met.
80. It should be pointed out for the sake of completeness that application of Article 30 of the Regulation is also subject to the condition that the measures that must be taken are necessary. (36)
81. Finally, it must be pointed out that, in accordance with the case-law of the Court of Justice and the Court of First Instance, (37) the purpose of Article 30 of the Regulation is not only to remove difficulties affecting the internal market, that is to say to resolve problems of a general nature, it is also to resolve specific individual cases. (38)
82. Since, according to settled case-law, (39) Article 30 of the Regulation applies only to those measures which are designed to overcome difficulties which have arisen as a result of the transition from a national legal situation to the organisation of the market established by the Regulation, the Court of First Instance should have made observations to that effect.
83. Such an examination essentially consists in a comparison of the old and the new legal situation, and in particular of the possibilities provided for in each to overcome the corresponding difficulties.
84. As far as an analysis of the legal situation previously in force in Italy is concerned, the Court of First Instance stated the following in paragraph 140 of its judgment:
85. Those observations demonstrate that the Court of First Instance at least made an abstract legal comparison between the old and the new legal situation.
86. However, as is apparent from the purpose of Article 30 of the Regulation, application of that provision is subject to the condition that the difficulties arise in the course of the transition to the new regime. Since that provision, as a derogation, must be interpreted restrictively, (40) it is not sufficient that certain difficulties arise of a general nature, that is to say, on an abstract legal level. Instead, the Court of First Instance must examine whether and to what extent the particular applicant, that is to say the operator concerned, has difficulties which are caused by the transition from the old to the new system. Thus, proof is also required of specific difficulties and the causal link between the transition and those specific difficulties experienced by the operator concerned.
87. In that regard the Court of First Instance held in paragraphs 142 and 143 of its judgment:
88. Thus, given that there is no need to require too high a standard of the examination of the causes of the difficulties, it can be assumed that the Court of First Instance established to a sufficient degree that there was a connection between the difficulties and the introduction of the new regime. (41)
89. It should be pointed out for the sake of completeness that under Article 225 EC and Article 51 of the EC Statute of the Court of Justice, an appeal lies on a point of law only. Therefore, the Court of First Instance has sole jurisdiction to find and appraise the facts, except in a case where the factual inaccuracy of its findings is demonstrated by the evidence adduced before it. The appraisal of the facts does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice. (42) Consequently, the examination must be limited to points of law.
90. The wording of Article 30 of the Regulation must initially be used as a basis for consideration of the second constituent requirement contained in that provision too.
91. As Camar and Tico and the Italian Government correctly submit, Article 30 of the Regulation refers only to difficulties of a sensitive nature (43) ( particolari difficoltà). In many of the language versions that could be interpreted to mean difficulties having a certain impact. (44)
92. In this connection, the question therefore arises as to the point from which difficulties must be regarded as being of a sensitive nature within the meaning of Article 30 of the Regulation.
93. With regard to individual operators, what must be determined is how severely the undertaking concerned has to be affected (45) before the Commission is obliged to adopt measures.
94. If it is to be assumed that the terms cases of hardship and difficulties threatening [the operator's] existence in the judgment of the Court of Justice in T. Port relate to the same terms used in the question submitted by the referring court, and if it is to be borne in mind that the answers given by the Court of Justice in preliminary ruling procedures restrict themselves to the questions referred, it can be concluded that cases of hardship and difficulties threatening [the operator's] existence satisfy the conditions laid down in Article 30 of the Regulation in any case.
95. On the one hand, the judgment in T. Port may be understood as not providing an answer in any situation other than that in the main proceedings in that case. Adopting that interpretation, the Court of First Instance proceeds on the assumption that Article 30 of the Regulation does not have to be applied solely to situations such as those in T. Port , that is to say cases of hardship and/or difficulties threatening [the operator's] existence.
96. On the other hand, however, the judgment in T. Port can also be interpreted in such a way that it does not relate to a particular situation but sets out a generally applicable principle (46) in accordance with which Article 30 of the Regulation applies only to cases of hardship or difficulties threatening [the operator's] existence.
97. However, even on that assumption it is still unclear what is meant by cases of hardship or difficulties threatening [the operator's] existence and in particular, whether, as the Commission argues, the survival of the operator concerned is always involved. Accordingly, the terms cases of hardship and difficulties threatening [the operator's] existence are wider than is implied by the Commission's reference to survival.
98. The judgment in T. Port is itself based on a situation which, unlike the present case, did not involve considerably more serious difficulties for the person concerned. In that regard the Court of Justice found in paragraph 40 of that judgment:
99. It is also apparent from the following (general) findings in the judgment in T. Port that the Court of Justice did not intend to apply too strict a principle:
100. Thus, it is the requirement to take action, not only with regard to the type of measures to be taken but also with regard to the type of difficulties, which is important. Nevertheless, it cannot be inferred from that condition either that the survival of the operator concerned must always be a factor.
101. However, it can be inferred neither from the wording of Article 30 of the Regulation nor from the operative part of the judgment in T. Port that Article 30 applies only to circumstances where survival is endangered. Rather, the term difficulties of a sensitive nature referred to in that provision should suffice. It is an imprecise legal expression which cannot, as pointed out already, be confined to situations where survival is at stake.
102. In that connection, it is important to remember that when applying Article 30 of the Regulation, notwithstanding its obligation to adopt measures, the Commission has a discretion when assessing the difficulties as well as when deciding which measures are to be adopted. Although this is subject to review by the Court of Justice, (49) such review is limited.
103. The Court of First Instance has presented the essential facts adequately and consequently its legal findings are not based on an error of law.
104. It should also be pointed out for the sake of completeness that it is not for the court of appeal to review the facts relating to the difficulties Camar and Tico experienced.
105. For the reasons stated above, I propose that the Court of Justice should dismiss the second ground of appeal.
C ─ Third ground of appeal: the criteria governing the applicability of Article 16(3) of the Regulation (Case T-117/98)
106. Since, in my view, the ground of appeal concerning the incorrect appraisal of the admissibility of the action for annulment in Case T-117/98 is well founded, that is to say Camar and Tico do not have locus standi , I therefore believe that it is unnecessary to examine that ground, which concerns the factual and legal aspects of Case T-117/98.
D ─ Conditions for establishing the non-contractual liability of the Community (Case T-260/97)1. Submissions of the parties2. Assessment(a) Admissibility of the Council's submission(b) Merits of the Council's submission44 Where the Member State or the institution in question 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, to that effect, Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 28).45 It is therefore necessary to examine whether, in the present case, as the appellants assert, the Court of First Instance erred in law in its examination of the way in which the Commission exercised its discretion when it adopted the Adaptation Directive.25 On the one hand, a breach of Community law is sufficiently serious if a Community institution or a Member State, in the exercise of its rule-making powers, manifestly and gravely disregards the limits on those powers (see Joined Cases 83/76, 94/76, 4/77, 15/77 and 40/77 HNL and Others v Council and Commission [1978] ECR 1209, paragraph 6; Brasserie du Pêcheur and Factortame, paragraph 55; and British Telecommunications, paragraph 42). On the other hand, if, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had 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 Hedley Lomas, paragraph 28).46 In that regard, the Court finds that the general or individual nature of a measure taken by an institution is not a decisive criterion for identifying the limits of the discretion enjoyed by the institution in question.
107. With regard to the issue of non-contractual liability in Case T-260/97, the Commission submits that that part of the judgment of the Court of First Instance must be set aside. It maintains that the said part of the judgment (paragraphs 190 and 191) is based on errors of law in the interpretation of Article 30 of the Regulation. However, according to that Court, it is the infringement of that provision which forms the basis of the liability.
108. In the view of the Court of First Instance, the Commission was rendered liable ─ as can be inferred from paragraph 206 of the judgment ─ as a result of the adoption of the rejection decision of 17 July 1997.
109. The Commission also claims that the Court of Justice has before it all the facts necessary to adjudicate on the matter without referring the case back to the Court of First Instance.
110. The Council contests in particular the assessment made by the Court of First Instance in paragraph 206 of the judgment, according to which it is the distinction between legislative measures and individual measures which is decisive in establishing non-contractual liability. In the judgment in Bergaderm , (50) which was not delivered until after the judgment of the Court of First Instance at issue, however, the Court of Justice did not focus expressly on that distinction. According to the judgment in Bergaderm, the crucial point was, rather, the margin of discretion enjoyed by the institutions.
111. It also claims that, since the Community institutions enjoy a broad discretion when applying Article 30 of the Regulation, the Court of First Instance should therefore have examined whether such unlawfulness on the part of the European Commission should be regarded as a manifest and serious infringement of a provision which confers rights on the individual.
112. It is clear that the Commission's submission can only be successful if the requirement of unlawful action by the Commission is not met, that is to say, if Article 30 of the Regulation was applied correctly by the Commission.
113. As already stated, the Court of First Instance interpreted Article 30 of the Regulation correctly in law and, accordingly, also established the unlawfulness of the Commission's action. The criterion of unlawfulness, which is necessary for determining liability, is therefore met.
114. The admissibility of the Council's submission in its response must first be examined. In that regard it must be ascertained whether a cross-appeal was raised in the response, given that the Council submits arguments which it did not bring before the Court of First Instance. (51)
115. Article 116(2) of the Rules of Procedure of the Court of Justice states that the subject-matter of the proceedings before the Court of First Instance may not be changed in the response. Under Article 116 of the Rules of Procedure (52) of the Court of Justice and Article 48(2) of the Rules of Procedure of the Court of First Instance, (53) no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. Otherwise, a party could refer an issue to the Court of Justice which is wider than that which the Court of First Instance had to decide.
116. Even the application to this case of the case-law relating to the first paragraph of Article 41 of the EC Statute of the Court of Justice, which concerns the revision of a judgment, points to the inadmissibility of the argument regarding the judgment of the Court of Justice in Bergaderm . A judgment in another case does not constitute a ground for revision. (54) Moreover, there is in this case no discovery of elements of a factual nature, as required for a revision, let alone elements which existed prior to the judgment in the case to be subject to revision. (55)
117. Furthermore, it would also seem unwise to refer to judgments of the Court of Justice delivered after the judgment of the Court of First Instance at issue in so far as any such reference would essentially be affected by the timing of events. The chronology of those events (judgment of the Court of First Instance, judgment of the Court of Justice, judgment of the Court of Justice on appeal) depends in particular on the length of the proceedings before the Court of First Instance and the Court of Justice respectively, and the duration of one set of proceedings has no influence on that of the other. Then, quite importantly, there is the procedure in the appeal, however long that may take. Thus, if the judgment in Bergaderm had been delivered only after the time-limit for the response had expired, the Council would not have been able to rely on it in its response in any case. Moreover, whether the Council may make oral submissions again depends on whether the hearing takes place at all. (56)
118. Nor, however, is it possible to take the view here that the Council's submission is merely the development of an argument already raised at first instance as confirmed by the Court of Justice in its case-law. (57)
119. The Council's submission is new in that, in its response the Council contests paragraphs 205 to 208 of the judgment of the Court of First Instance, that is to say, that Court's observations on the liability of the Community as a result of an infringement by the Commission. In contrast, in the proceedings before the Court of First Instance, that is to say, in Case T-260/97, the Council restricted itself to the issue of a possible infringement committed by itself and to its own liability .
120. Consequently, a new argument is advanced which, according to the case-law of the Court of Justice, (58) cannot be considered in an appeal. Thus, it can be best compared to a ground of appeal which raises a separate issue which is raised for the first time in an appeal. (59)
121. As regards the condition that there must be an infringement for liability to be incurred, the Council puts forward the view in its response that the institutions enjoy a broad discretion in this case and this therefore requires the infringement to be obvious and serious. However, in so far as the Council merely reproduces the submission it put forward before the Court of First Instance, that submission is inadmissible in any case.
122. The inadmissibility of the Council's submission could also be inferred from the judgment in Atlanta (60) which states that a submission which changes the very basis on which the Community could be held liable must be regarded as constituting a new plea in law. That applies a fortiori in the present case, in which the Council refers in the appeal to an act which could give rise to liability which is different from that relied on in the proceedings at first instance.
123. However, the Council's submission would be admissible if the Court of Justice did not base its decision on its abovementioned case-law but held the submission admissible on the ground that in its response the Council puts forward arguments on the basis of which it considers that the legal assessment of the Court of First Instance is incorrect. (61)
124. Consequently, in this respect the Court of Justice could adopt a different, more liberal approach, which it also adopted as the basis of its judgment in Bergaderm . In that judgment it held that the first ground of appeal specifically challenges paragraph 50 of the contested judgment and includes an argument intended to show that the Court of First Instance erred in law in regarding the Adaptation Directive as a legislative measure. (62)
125. In any event, this case provides an opportunity for the Court of Justice to clarify the conditions required for the admissibility of arguments put forward in an appeal.
126. In the event that the Court of Justice considers the Council's submission to be admissible, its merits must be examined. That entails first of all establishing the criterion for determining whether the Community has incurred liability and examining the judgment of the Court of First Instance so as to ascertain whether it applied that criterion correctly. The criterion of unlawfulness is the crucial consideration in the process.
127. The criterion used by the Court of Justice in Bergaderm (63) may be taken as the starting point. In that judgment the Court found as follows:
128. It can be inferred from that judgment that the Court of Justice stresses the parallels between the liability of the Member States and that of the Community. That is demonstrated by the requirement that the same criteria are applied in both instances.
129. Of course, the parallels between State liability and Community liability were already drawn in an earlier judgment in the case of Dillenkofer . (64) That judgment states as follows:
130. With regard to whether the breach is sufficiently serious, the Court of Justice makes a distinction between two situations in that judgment: manifest and grave disregard of the limits on rule-making powers and, under certain conditions, the mere infringement of Community law. As far as the first situation is concerned, it treats the institutions and the Member States in the same way. As regards the second situation, it then mentions only the Member States in the context of that case.
131. Bergaderm then extended the notion of equal treatment of institutions and Member States to include the mere infringement of Community law.
132. However, a comparison of Dillenkofer and Bergaderm also reveals a crucial difference. With regard to manifest and grave disregard, there is no restriction in Bergaderm , as in paragraph 25 of Dillenkofer , to cases involving the exercise of rule-making powers (pouvoir normatif) which, according to the terminology of the Court of Justice, means action in the form of abstract measures of general application. Instead, paragraph 43 of Bergaderm merely refers to the limits on its discretion or, in the language of the proceedings in question, limites qui s'imposent à son pouvoir d'appréciation.
133. Thus, in accordance with the wording it chose in Bergaderm , the Court of Justice no longer restricted the application of the criterion of grave disregard to cases of discretion where a legislative measure is concerned.
134. That view is best illustrated by the clear and unequivocal finding below:
135. Thus, as is clear from all the language versions of paragraph 46 of Bergaderm ,the distinction between measures of general application and individual measures is no longer intended to be of any significance. The Court of First Instance has also adopted that interpretation in other cases. (65)
136. According to Bergaderm, the only decisive criterion is the margin of discretion enjoyed by the institution in question and the way in which that institution exercised its discretion. Consequently, that is the criterion to be used for assessing whether the measures taken by institutions are unlawful.
137. In the present case that means that it is immaterial whether the measure taken by the Commission is to be regarded as general or individual.
138. However, that still does not make it possible to conclude that, in its assessment of unlawfulness in paragraph 206 of its judgment in this case the Court of First Instance errered in law and that that Court would have reached a different conclusion if it had applied the criteria set out in Bergaderm .
139. Even if, contrary to the approach taken by the Court of First Instance, what matters is not the nature of the measure taken by the Commission but merely the margin of discretion enjoyed by the Commission, the conclusion can also be drawn that the measure taken by the Commission was unlawful.
140. If it is established that the Commission has considerably reduced, or even no, discretion, the mere infringement of Community law is sufficient to establish unlawfulness. On that view (narrow margin of discretion), the Commission, as stated above, incorrectly applied Article 30 of the Regulation, in which case the situation of mere infringement of Community law would arise. If, however, it is assumed that the Commission has a broad discretion when applying Article 30, the mere infringement of Community law is not sufficient to establish unlawfulness.
141. If the Court of Justice takes the view that it must review the judgment of the Court of First Instance with regard to whether all three conditions required to establish liability (unlawfulness, damage, causal link) are satisfied and if it concludes that the judgment must be set aside, it must, in accordance with Article 54 of the EC Statute, also decide whether it will itself give judgment in the matter or refer the case back to the Court of First Instance. In view of the fact that the state of the proceedings permits judgment to be given, I recommend the former option.
142. However, as stated above, that depends first of all on whether the Council's submission must be examined at all.
VII ─ Costs
143. Pursuant to Article 122 of the Rules of Procedure, the Court of Justice must make a decision as to costs where the appeal is well founded and the Court itself gives final judgment in the case. Pursuant to Article 69(2), which is to apply to an appeal pursuant to Article 118, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleadings. However, pursuant to Article 69(3), the Court may order the parties to share the costs where each party succeeds on some and fails on other heads.
144. Since the Commission has failed on some heads, I propose that the Court of Justice should order the appellant, the respondent and the Council each to pay their own costs in the appeal.
145. Camar and Tico should pay the costs in Case T-117/98 and the Commission should pay the costs in Case T-79/96. As far as the costs in Case T-260/97 are concerned, points 7 and 8 of the operative part of the contested judgment, which relate to costs, should be upheld.
146. The French Republic and the Italian Republic should bear their own costs.
VIII ─ Conclusion
147. In the light of the foregoing, I propose that the Court should:
─ set aside the judgment in Case T-117/98 in so far as the action for annulment directed against the Commission has been declared admissible;
─ declare the action in Case T-117/98 inadmissible;
─ otherwise dismiss the appeal;
─ order Camar and Tico, and the Commission and the Council to bear their own costs in the appeal;
─ order Camar and Tico to pay the costs in Case T-117/98, order the Commission to pay the costs in Case T-79/96 and uphold points 7 and 8 of the operative part of the contested judgment concerning the costs in Case T-260/97;
─ order the French Republic and the Italian Republic to bear their own costs.
1 – Original language: German.
2 – Joined Cases T-79/96, T-260/97 and T-117/98 Camar and Tico v Commission and Council [2000] ECR II-2193.
3 – OJ 1993 L 47, p. 1, amended several times.
4 – See Joined Cases T-79/96, T-260/97 and T-117/98 (cited in footnote 2), paragraphs 20 to 25 and paragraph 27.
5 – See also the comments concerning Article 19 of Regulation No 404/93 under the section setting out the legal framework.
6 – See paragraphs 1 to 12 and 15 to 19.
7 – OJ 1994 L 349, p. 105.
8 – As amended by Regulation No 3290/94.
9 – OJ 1993 L 142, p. 6.
10 – Commission Regulations (EC) Nos 2791/94 of 16 November 1994, 510/95 of 7 March 1995, and 1163/95 of 23 May 1995 on the exceptional allocation of a quantity additional to the tariff quota for imports of bananas in 1994, the first quarter of 1995 and the second quarter of 1995 respectively, as a result of tropical storm Debbie (OJ 1994 L 296, p. 33, OJ 1995 L 51, p. 8 and OJ 1995 L 117, p. 12); Commission Regulations (EC) Nos 2358/95 of 6 October 1995, 127/96 of 25 January 1996 and 822/96 of 3 May 1996 on the exceptional allocation of a quantity additional to the tariff quota for imports of bananas for the fourth quarter of 1995, the first quarter of 1996 and the second quarter of 1996 respectively, as a result of tropical storms Iris, Luis and Marilyn (OJ 1995 L 241, p. 5, OJ 1996 L 20, p. 17 and OJ 1996 L 111, p. 7).
11 – See, in particular, Case C-451/98 Antillean Rice Mills v Council [2001] ECR I-8949, paragraph 49, on that point.
12 – Case T-47/95 Terres Rouges and Others v Commission [1997] ECR II-481, paragraph 46.
13 – See in that regard Canedo, L'intérêt à agir dans le recours en annulation du droit communautaire, Revue trimestrielle de droit européen 2000, 451, 491.
14 – Case C-358/89 Extramet v Council [1991] ECR I-2501, paragraph 17.
15 – However, for a broad interpretation of the judgment in Codorniu see Arnull, Private Applicants and the Action for Annulment since Codorniu, Common Market Law Review , 2001, 7, 43; Denis Waelbroeck, Denis Fosselard, Common Market Law Review , 1995, 257, 266 et seq.; Nihoul, La recevabilité des recours en annulation introduits par un particulier à l'encontre d'un acte communautaire de portée générale, 1994, 171, 184; Vandersanden, Pour un élargissement du droit des particuliers d'agir en annulation contre des actes autres que les décisions qui leur sont adressées, Cahiers de droit européen , 1995, 535, 544.
16 – See also, for instance, the Opinion delivered by Advocate General Cosmas in Case C-321/95 P Greenpeace Council v Commission [1998] ECR I-1651, point 91, regarding this interpretation.
17 – Case C-309/89 Codorniu v Council [1994] ECR I-1853, paragraph 21, concerning the use of a registered trade mark for a particular sparkling wine.
18 – Case 26/86 Deutz und Geldermann v Council [1987] ECR 941.
19 – Order in Case C-10/95 P Asocarne v Council [1995] ECR I-4149, paragraph 43.
20 – Case T-47/95 (cited in footnote 12, paragraph 47).
21 – Order in Case T-11/99 Van Parijs and Others v Commission [1999] ECR II-2653, paragraph 50.
22 – Case C-209/94 P Buralux and Others v Council [1996] ECR I-615, paragraph 29.
23 – Case C-41/99 P Sadam and Others v Council [2001] ECR I-4239, paragraph 29.
24 – Case C-451/98 (cited in footnote 11), paragraph 54.
25 – Order in Case C-351/99 P Eridania and Others v Council [2001] ECR I-5007, paragraph 63.
26 – Moitinho de Almeida, Le recours en annulation des particuliers (article 173, deuxième alinéa, du traité EC): nouvelles reflexions sur l'expression la concernent ... individuellement, in Festschrift Ulrich Everling, 1995 , Volume 1, 849, 863.
27 – Paragraph 140 of the judgment.
28 – Paragraph 151 of the judgment.
29 – Case C-68/95 T. Port v Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I-6065.
30 – See, in particular, Article 43 of Council Regulation (EEC) No 136/66 on the establishment of a common organisation of the market in oils and fats (OJ, English Special Edition 1965-1966, p. 221), and Article 23 of Council Regulation (EEC) No 1696/71 on the common organisation of the market in hops (OJ 1971 L 175, p. 1).
31 – The Danish, French, Portuguese and Swedish versions, inter alia.
32 – All versions except the German version. The phrase is at the end of the sentence in the Spanish version.
33 – The recital reads in part as follows: whereas the Commission ... should be able to take any transitional measures required to overcome the difficulties ....
34 – Case C-68/95 (cited in footnote 29), paragraph 43.
35 – Case T-612/97 Cordis v Commission [1999] ECR II-2771, paragraph 46, and Case T-251/97 T. Port v Commission [2000] ECR II-1775, paragraph 69.
36 – Case C-68/95 (cited in footnote 29, paragraph 35) and Case C-442/99 P Cordis v Commission [2001] ECR I-6629, paragraph 12.
37 – Case C-68/95 (cited in footnote 29), Case T-612/97 and Case T-251/97 (both cited in footnote 35).
38 – That view is challenged by some legal commentators (Pache, Das Ende der Bananenmarktordnung?, Europarecht 1995, 95, 102, and Weustenfeld, Die Bananenmarktordnung der EG und der Handel mit Drittstaaten, 1997, 124 et seq.); an open approach is taken by Everling, Will Europe slip on Bananas?, Common Market Law Review 33 (1996), 410, 417 et seq., and Manservisi, L'organisazzione comune di mercato nel settore delle banane, Rivista di diritto agrario , 1994, 73, 84; the view is, however, supported by Zuleeg, Bananen und Grundrechte ─ Anlass zum Konflikt zwischen europäischer und deutscher Gerichtsbarkeit, Neue Juristische Wochenschrift 1997, 1201, 1206.
39 – Case C-68/95 (cited in footnote 29, paragraph 36), Joined Cases C-9/95, C-23/95 and C-156/95 Belgium and Germany v Commission [1997] ECR I-645, paragraph 24 et seq., and Case C-442/99 P (cited in footnote 36, paragraph 13).
40 – Case T-252/97 Dürbeck v Commission [2000] ECR II-3031, paragraph 70, and the case-law cited therein.
41 – Cf. Case C-442/99 P (cited in footnote 36), paragraph 19.
42 – Case C-442/99 P (cited in footnote 36, paragraph 17), and the case-law cited therein.
43 – Likewise the Dutch version.
44 – This applies, for example, to the English, French, Portuguese and Swedish versions.
45 – Cf. Advocate General Elmer in Case C-68/95 (cited in footnote 29), point 38.
46 – Such a principle can be derived not least from the judgment of the Court of First Instance in Case T-251/97 (cited in footnote 35, paragraph 69); see also Case T-612/97 (cited in footnote 35, paragraph 46), in which the Court of First Instance refers to the criteria set out in Case C-68/95 (cited in footnote 29). In contrast to the view held by Camar and Tico, the judgments delivered by the Court of First Instance in Cordis and T. Port are also relevant in that at least a general principle can be derived from them with regard to the minimum level of severity which must exist. It is immaterial that the facts in the two cases are different.
47 – Emphasis added.
48 – Judgment cited in footnote 29, paragraph 38.
49 – Paragraph 38; cf. also Case T-254/97 Fruchthandelsgesellschaft Chemnitz v Commission [1999] ECR II-2743, paragraph 67, and Case T-252/97 (cited in footnote 40, paragraph 69).
50 – Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 46.
51 – The Council was not able to refer to the judgment in Bergaderm , nor did it submit any comparable arguments.
52 – 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 67, Case C-64/98 P Petrides v Commission [1999] ECR I-5187, paragraph 18, and Case C-153/96 P De Rijk v Commission [1997] ECR I-2901, paragraph 18.
53 – C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 58 et seq.
54 – Order in Case T-4/89 REV BASF v Commission [1992] ECR II-1591, paragraph 12, and Case C-403/85 REV Ferrandi v Commission [1991] ECR I-1215, paragraph 13.
55 – Joined Cases C-199/94 P and C-200/94 P REV Inpesca v Commission [1998] ECR I-831, paragraph 17.
56 – Even the possibility of suspending its own proceedings, which is available to the Court of First Instance itself, depends on whether and when that Court is informed of the proceedings pending before the Court of Justice.
57 – Case C-76/93 P Scaramuzza v Commission [1994] ECR I-5173, paragraph 18.
58 – In accordance with the Court's restrictive approach, not every new submission is permissible simply because it must be regarded as an argument . The crucial point is whether the argument raises new matters (Case C-450/98 P IECC v Commission [2001] ECR I-3947, paragraph 36) or whether the submission is merely the development of an argument (Case C-76/93 P, cited in footnote 57). Under those conditions the distinction between plea and argument emphasised by Advocate General Léger in point 55 et seq. of his Opinion in Case C-41/00 P is not sufficient in itself (See Joined Cases C-280/99 P, C-281/99 P and C-282/99 P, cited in footnote 52, paragraphs 64 and 65; on case-law in general see Bölhof, Das Rechtsmittelverfahren vor dem Gerichtshof der Europäischen Gemeinschaften , 2001, 111 et seq.). That problem is complicated even further by the fact that not all language versions of the provisions of the Rules of Procedure relevant to appeals refer separately to arguments in any case. For example, the German version of Article 112 limits itself to Rechtsmittelgründe (grounds of appeal) and that of Article 115 to rechtliche Begründung (legal grounds). [The translator's note: the English version uses the expression the pleas in law and legal arguments relied on in both cases.] Article 117 refers only to Gesichtspunkt (point of view) on which an application to quash a decision is made. However, even if it is assumed that the terms used in the Rules of Procedure and the distinction drawn therein were taken from French administrative law, that does not mean that the interpretation has to be the same because that would attribute a dynamic quality to those terms as part of a continually developing national legal system.
59 – On the inadmissibility of that ground of appeal see Case C-64/98 P (cited in footnote 52), paragraph 18.
60 – Case C-104/97 P Atlanta v European Community [1999] ECR I-6983, paragraph 27.
61 – Case C-154/99 P Politi v European Training Foundation [2000] ECR I-5019, paragraph 12.
62 – Case C-352/98 P (cited in footnote 50), paragraph 36.
63 – Case C-352/98 P (cited in footnote 50).
64 – Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others v Federal Republic of Germany [1996] ECR I-4845.
65 – See in that regard Joined Cases T-198/95, T-171/96, T-230/97, T-174/98 and T-225/99 Comafrica and Dole Fresh v Commission [2001] ECR II-1975, paragraph 136, and Case T-155/99 Dieckmann & Hansen v Commission [2001] ECR II-3143, paragraph 45.
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