Case C-312/00 P
Commission of the European Communities
v
Camar Srl and Tico Srl
«(Appeal – Common organisation of the markets – Bananas – Request for additional import licences – Adjustment of tariff quota where necessary – Non-contractual liability of the Community – Action for annulment – Admissibility)»
Opinion of Advocate General Stix-Hackl delivered on 16 April 2002 I - 0000 Judgment of the Court, 10 December 2002 I - 0000
Summary of the Judgment
1.. Agriculture – Common organisation of the markets – Bananas – Import arrangements – Tariff quota – Taking into account of the difficulties inherent in the transition from national arrangements to the common organisation of the market
(Council Regulation No 404/93, Art. 19(2) and 30)
2.. Non-contractual liability – Conditions – Sufficiently serious breach of Community law – Discretion of the institution in the adoption of measures
(Art. 228 EC, second para.)
3.. Appeals – Pleas in law – Grounds of a judgment vitiated by an infringement of Community law – Operative part well founded for other legal reasons – Dismissal
4.. Appeals – Pleas in law – Review by the Court of Justice of the legal characterisation of the facts – Permissible
(Art. 225 EC; EC Statute of the Court of Justice, Art. 51)
5.. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Refusal by the Commission to adopt regulatory measures enabling importers of bananas from a non-Member State to deal with difficulties arising from the fall in production consequent on exceptional climatic conditions – Inadmissible
(Art. 230 EC, fourth para.; Council Regulation No 404/93, Arts 16(3), 18 and 19(1))
1. While Article 30 of Regulation No 404/93 on the common organisation of the market in bananas authorises and, according to 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 when an exceptionally low quota is allocated to them on the basis of the reference years to be taken into consideration under Article 19(2) of that regulation, it is by no means ruled out that Article 30 could also apply to other types of difficulties, since they are inherent in the transition from national arrangements existing before that regulation entered into force to the common organisation of the market. see paras 46-47
2. Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties. As to the second condition, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion. Where that institution 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. It follows that the decisive test for determining whether there has been such an infringement is not the individual nature of the act in question, but the discretion available to the institution when it was adopted. see paras 53-55
3. Where the grounds of a judgment of the Court of First Instance disclose an infringement of Community law but the operative part of the judgment is shown to be well founded for other legal reasons, the appeal must be dismissed. see para. 57
4. While it is true that under Article 225 EC and Article 51 of the Statute of the Court of Justice an appeal lies on a point of law only and that, therefore, the Court of First Instance has, in principle, sole jurisdiction to find and appraise the facts, the Court of Justice nevertheless has jurisdiction to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. see para. 69
5. A measure of general application such as a regulation can be of individual concern to natural and legal persons only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee. The main importers of Somalian bananas cannot be considered to have been concerned individually by the regulation which, according to them, the Commission should have adopted, under Article 16(3) of Regulation No 404/93, on the common organisation of the market in bananas, in order to adjust the tariff quota fixed by Article 18 of that regulation to deal with the effect on banana production in Somalia of the exceptional floods in 1997 and 1998. Even if that regulation could have derogated, in respect of the fraction of the tariff quota which is adjusted, from the allocation formula fixed by Article 19(1) of Regulation No 404/93, it would have concerned the said importers only by reason of their objective status of importers of Somalian bananas, in the same way as every other operator in a similar situation. see paras 73, 75-76, 79
JUDGMENT OF THE COURT
10 December 2002 (1)
((Appeal – Common organisation of the markets – Bananas – Request for additional import licences – Adjustment of tariff quota where necessary – Non-contractual liability of the Community – Action for annulment – Admissibility))
In Case C-312/00 P,
Commission of the European Communities, represented by C. van der Hauwaert and L. Visaggio, acting as Agents, and by A. Dal Ferro, avvocato, with an address for service in Luxembourg,
appellant,
APPEAL against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 8 June 2000 in Joined Cases T-79/96, T-260/97 and T-117/98 Camar and Tico v Commission and Council [2000] ECR II-2193, seeking to have that judgment set aside,
the other parties to the proceedings being:
Camar Srl, established in Florence (Italy), represented by W. Viscardini Donà, M. Paolin and S. Donà, avvocati, with an address for service in Luxembourg,applicant at first instance in Joined Cases T-79/96, T-260/97 and T-117/98, Tico Srl, established in Padua (Italy), represented by W. Viscardini Donà, M. Paolin and S. Donà, avvocati, with an address for service in Luxembourg,applicant at first instance in Case T-117/98, Council of the European Union, represented by F. Ruggeri Laderchi, acting as Agent, with an address for service in Luxembourg,defendant at first instance in Case T-260/97, French Republic, represented by C. Vasak and G. de Bergues, acting as Agents, with an address for service in Luxembourg,intervener at first instance in Joined Cases T-79/96 and T-260/97, and Italian Republic, represented by U. Leanza, acting as Agent, and by F. Quadri, avvocato dello Stato, with an address for service in Luxembourg,intervener at first instance in Case T-79/96,
THE COURT,,
composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet, R. Schintgen (Rapporteur) and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges,
Advocate General: C. Stix-Hackl,
Registrar: R. Grass,
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 16 April 2002,
gives the following
Judgment
1 By application lodged at the Court Registry on 17 August 2000, the Commission of the European Communities brought an appeal under Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 8 June 2000 in Joined Cases T-79/96, T-260/97 and T-117/98 Camar and Tico v Commission and Council [2000] ECR II-2193 (hereinafter the contested judgment), seeking to have that judgment set aside.
Legal framework
2 In the contested judgment, the Court of First Instance set out the legal framework as follows:
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 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 (OJ 1994 L 349, p. 105), established a distinction between traditional and non-traditional bananas depending on whether they formed part of the quantities, set out in the Annex to Regulation No 404/93, traditionally exported by the ACP States to the Community. For Somalia, the traditional quantity was 60 000 tonnes.
2 Article 18(1) of Regulation No 404/93 (as amended by Regulation No 3290/94) 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.
3 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).
4 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 licences on the basis of half of the annual average quantity marketed between 1989 and 1991.
5 Article 19(4) of Regulation No 404/93 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).
6 Under Article 16(1) and (3) of Regulation No 404/93 a forecast supply balance was to be prepared each year 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. In such a case, the tariff quota provided for in Article 18 was to be adjusted in accordance with the procedure laid down in Article 27.
7 The fourth subparagraph of Article 18(1) of Regulation No 404/93 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 for the procedure governing any such increase.
8 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, which might cover in particular additional measures concerning the issue of licences, their term of validity and the conditions governing transferability.
9 Article 30 of Regulation No 404/93 provided that: 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.
10 Article 27 of the same regulation, which is referred to in Articles 16, 18 and 30 in particular, authorised the Commission to adopt measures for the implementation of the regulation in accordance with the management committee procedure.
11 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 (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 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.
12 In accordance with the provisions of the second subparagraph of Article 19(2) of Regulation No 404/93 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.
...
15 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 (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)). 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 Regulation No 404/93.
16 The Commission adopted the above regulations on the basis of Articles 16(3), 20 and 30 of Regulation No 404/93.
17 The reasons given for adopting the 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 Saint 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.
18 As to the system for increasing the tariff quota provided for in Article 16(3) of Regulation No 404/93, the Commission stated in the fourth recital to the regulations: 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.
19 In the fifth recital 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 referred to above], included provisions ensuring supplies to the market from other suppliers while safeguarding the interests of operators who are victims of such exceptional events.
The facts
3 As regards the facts, the Court of First Instance made the following findings in the contested judgment:
20 The applicant, 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 that type of banana.
21 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).
22 On 31 December 1990 civil war broke out in Somalia and the normal flow of Camar's imports was interrupted.
23 From the outbreak of war until the common organisation of the market came into force in 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.
24 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 (for 4 008.521 tonnes in 1993, 8 048.691 tonnes in 1994, 3 423.761 tonnes in 1995 and 5 312.671 tonnes in 1996) and also with Category B licences (for 5 622.938 tonnes in 1993, 10 739.088 tonnes in 1994, 6 075.934 tonnes in 1995 and 2 948.596 tonnes in 1996). 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.
25 During that period the quantities of bananas imported from Somalia by the applicant 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 were limited to 21 599 tonnes, 12 000 of which were marketed by Camar.
...
27 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 Regulation No 404/93 (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 difference between those quantities. The applicant cited as precedents here the measures which the Commission had adopted after cyclones Debbie, Iris, Luis and Marilyn.
The actions before the Court of First Instance
Case T-79/96
4 In Case T-79/96, Camar Srl (hereinafter Camar) asked the Court of First Instance to declare that, by failing to take, for the 1996 marketing year, the steps which were necessary to enable it to overcome its supply problems resulting from the crisis in Somalia and which it had sought from the Commission in the course of proceedings under the second paragraph of Article 175 of the EC Treaty (now the second paragraph of Article 232 EC) for failure to act, the Commission had infringed Article 30 of Regulation No 404/93 and Article 40(3) of the EC Treaty (now, after amendment, Article 34(2) EC). Camar also sought an order that the Commission pay compensation for the damage it had suffered as a result of such failure to act.
5 In support of its action for failure to act, Camar relied upon two grounds alleging, first, infringement of the obligation to take action imposed by Article 30 of Regulation No 404/93 in order to assist the transition from the various national arrangements to the common organisation of the markets established by that regulation and, secondly, the Commission's obligation to act in accordance with the principle of non-discrimination with regard to operators who had traditionally marketed bananas from certain ACP countries and from certain overseas French departments affected by the tropical storms.
Case T-260/97
6 In Case T-260/97, Camar asked the Court of First Instance to annul the Commission's Decision of 17 July 1997 (hereinafter the Decision of 17 July 1997), rejecting Camar's request, pursuant to Article 30 of Regulation No 404/93, that it determine the licences to be issued to Camar to import bananas from third countries and non-traditional ACP countries as a category B operator for 1997 and subsequent years on the basis of the quantities of bananas which it had marketed during the years 1988 to 1990 until its normal reference quantities were restored. It also asked that the Commission be ordered to pay compensation for the past and future losses it suffered as a result of that decision. In the alternative, it asked that the Council be ordered to pay compensation for failing to adopt special provisions under Regulation No 404/93 to deal with situations such as Camar's.
7 In support of its claims for annulment, Camar relied on several grounds, the first three of which were based on infringement of Article 30 as a result first, of incorrect interpretation of Regulation No 404/93; second, of incorrect appraisal of the facts; and third, misuse of powers.
8 In support of its claims for compensation against the Council, Camar argued that if it appeared that the Commission did not have the necessary powers to resolve the situation, it must be inferred from this that Regulation No 404/93 was to be regarded as unlawful for having allowed the existence of such a legal vacuum.
Case T-117/98
9 In Case T-117/98, Camar and Tico Srl (hereinafter Tico) asked the Court of First Instance to annul the Commission's Decision of 23 April 1998 rejecting their application for adjustment of the tariff quota, as provided for in Article 16(3) of Regulation No 404/93, for the first two quarters of 1998 to take account of imports from Somalia in 1996, having regard to 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. Camar and Tico claimed, in addition, that the Commission should be ordered to compensate them for the losses suffered as a result of that decision.
10 In support of their action for annulment, Camar and Tico put forward four pleas, three of which alleged infringement of Article 16(3) of Regulation No 404/93 in that, first, the Commission breached the conditions for application of that article; second, it failed to consider the effects of the exceptional circumstances referred to in that article; and third, it failed to apply the procedure provided for in Article 27 of that regulation.
The contested judgment
The operative part
11 In the contested judgment, the Court of First Instance:
1. In Case T-79/96, declares 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 has failed to fulfil its obligations under that article;
2. In Case T-260/97, annuls the Commission's decision of 17 July 1997 rejecting the application which the applicant submitted on the basis of Article 30 of Regulation No 404/93;
3. In Case T-117/98, annuls the Commission's decision of 23 April 1998 rejecting the application which the applicants submitted on the basis of Article 16(3) of Regulation No 404/93;
4. In Cases T-79/96 and T-117/98, dismisses the action for compensation as inadmissible;
5. In Case T-260/97, orders the Commission to pay compensation for the damage suffered by the applicant as a result of the decision of 17 July 1997 rejecting the application submitted by the applicant on the basis of Article 30 of Regulation No 404/93; Orders the parties to inform the Court, within six months of the date on which this judgment is delivered, of the sums to be paid, determined by common accord; Orders that, in the event of failure to reach agreement, they shall submit their quantified claims to the Court within that period;
6. Orders the Commission to pay the costs in Cases T-79/96 and T-117/98;
7. Orders the Commission to pay 90% of the costs in Case T-260/97;
8. Orders the Council to pay 10% of the costs in Case T-260/97;
9. Orders the Italian Republic and the French Republic to bear their own costs.
12 Following an application by the Commission under Article 85 of its Rules of Procedure, the Court of First Instance, by order of 6 December 2000, ruled as follows on the costs of the interlocutory proceedings which Camar had brought in Cases T-79/96 and T-260/97:
1. The Commission is ordered to bear its own costs, as well as those incurred by Camar in Case T-79/96 R.
2. The Commission is ordered to bear its own costs in Case T-260/97 R and 90% of those incurred by Camar in the same case.
3. The Council shall bear its own costs in Case T-260/97 R.
4. Camar shall bear 10% of the costs it incurred in Case T-260/97 R.
5. The Italian Republic and the French Republic shall bear their own costs in Case T-79/96 R.
6. The French Republic shall bear its own costs in Case T-260/97 R.
13 Under Article 77(b) of its Rules of Procedure, the Court of First Instance decided, by order of 7 February 2001, to stay proceedings in Case T-260/97 pending the judgment of the Court of Justice disposing of this appeal.
The grounds of judgment in Cases T-79/96 and T-260/97
14 With regard to Cases T-79/96 and T-260/97, the Court of First Instance found, first of all, at paragraph 102 of the contested judgment, that both in its action for declaration of failure to act in Case T-79/96 and in its action for annulment in Case T-260/97, Camar was seeking a declaration that the Commission, by its failure to act in the first case and its express refusal to act in the second, had failed to have regard to its obligation to act under Article 30 of Regulation No 404/93. It decided, therefore, to examine the pleas relating to that article.
15 The Court of First Instance pointed out first of all, at paragraph 138 of the contested judgment, that the Court of Justice had already ruled on the interpretation of Article 30 of Regulation No 404/93 in Case C-68/95 T. Port [1996] ECR I-6065. Stating, at paragraph 139 of the contested judgment, that it was not disputed that Camar's difficulties were not the result of action it took before Regulation No 404/93 came into force, it held, having regard to paragraphs 36 and 38 of the judgment in T. Port , cited above, that the conditions for application of Article 30 thereof could be regarded as satisfied in the present case if Camar had encountered difficulties associated with the transition from national arrangements to the Community system and if the intervention of the Commission was required in order to resolve those difficulties.
16 In that regard, the Court of First Instance particularly stated, at paragraph 140 of the contested judgment, as follows: As 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.
17 After having held, at paragraphs 141 and 142 of the contested judgment, that as a result particularly of the system established by Regulation No 404/93, it is difficult for an operator who loses his usual suppliers of Community or traditional ACP bananas to replace them from other suppliers of such bananas, the Court of First Instance held, at paragraph 143 of the contested judgment, as follows: ... 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. Those difficulties thus had very serious consequences for the viability of Camar's economic activity and could have endangered the continuation of that activity. They therefore constituted difficulties of a sensitive nature which, for the purposes of Article 30 of Regulation No 404/93 as explained in paragraph 38 of the judgment in T. Port , give rise to an obligation on the Commission to take any measures it judges necessary.
18 The Court of First Instance considered, at paragraphs 144 to 148 of the contested judgment, whether the measures requested by Camar in response to those difficulties were necessary or if the difficulties could have been overcome in some other way. It held, in that regard, at paragraph 149 of the contested judgment, that the Commission had committed a manifest error of appraisal in considering that Camar was capable of overcoming the difficulties caused by the transition from the Italian national arrangements to the Community system by relying on the operation of the market. It added in the same paragraph that, in point of fact, the only way for Camar to deal with the difficulties it faced would have been for the Commission to adopt transitional measures as provided for in Article 30 of Regulation No 404/93.
19 At paragraphs 150 and 151 of the contested judgment, the Court of First Instance continued as follows:
150 This conclusion is not invalidated by the Commission's argument that Article 30 of Regulation No 404/93, as interpreted by the Court of Justice in its judgment in T. Port , requires the Commission to take action only where banana importers encounter difficulties which are not just inherent in the transition from the national arrangements to the Community system, but which also threaten their existence.
151 It should also be pointed out that in paragraph 43 of the judgment in T. Port the Court of Justice stated that Article 30 may require 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. However, this statement cannot be understood to mean that the Commission is under an obligation to take action only in such cases. Such an interpretation would conflict with the wording of Article 30, which, as has already been stressed, provides that the Commission must take any measures necessary to overcome difficulties of a sensitive nature, and it would be incompatible with the principles of sound administration and protection for the right to pursue a professional or trade activity. Furthermore, the reference to the threat to the operator's existence followed from the specific wording of the question referred for a preliminary ruling (see judgment in T. Port , paragraph 23).
20 At paragraphs 152 and 153 of the contested judgment, the Court of First Instance upheld, in the light of all those considerations, the first plea in Case T-79/96 and the first to third pleas in Case T-260/97 and, without examining the other pleas raised, declared to be well founded Camar's applications for declarations that, in Case T-79/96, the Commission had unlawfully failed to take the necessary measures as provided for in Article 30 of Regulation No 404/93 and, in Case T-260/97, that the Decision of 17 July 1997 was unlawful.
21 In Case T-260/97, the Court of First Instance also held that the claim for damages against the Commission was well founded. At paragraph 205 of the contested judgment, it recalled its case-law according to which, in the field of administrative action, any infringement of law constitutes illegality which may give rise to liability on the part of the Community. At paragraph 206 of that judgment, it held that the Decision of 17 July 1997 was to be regarded as an administrative act, even if it was based on Article 30 of Regulation No 404/93, which gives the Commission broad discretionary power, and that, therefore, since the decision had been taken in breach of that provision, the first condition required to render the Commission liable was satisfied.
22 After holding that the other conditions in that regard were also satisfied and that, therefore, the liability of the Community was incurred by virtue of the Commission's action, the Court of First Instance stated, at paragraph 212 of the contested judgment, that there was no need to adjudicate on the liability of the Council, which Camar had alleged in the alternative.
The grounds of judgment in Case T-117/98
23 In relation to the admissibility of the claims for annulment in Case T-117/98, the Court of First Instance noted, at paragraph 93 of the contested judgment, that it follows from the case-law of the Court of Justice that, where, as in the present case, a rejection by the Commission relates to the adoption of a regulation, the persons concerned can seek annulment of that decision only if they 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.
24 On the question whether the regulation which the Commission refused to adopt in that case would have been of direct and individual concern to Camar and Tico, the Court of First Instance held, at paragraph 96 of the contested judgment, as follows: ... that regulation, in whose implementation the national authorities would have had no discretionary power, would have affected the applicants by reason of circumstances in which they are differentiated from all other persons. The purpose of the measures sought from the Commission was to allocate an additional quantity of import licences to those operators who had been victims of the floods in Somalia, in proportion to the damage they had suffered. It is apparent from the documents before the Court that until 1997 Camar was the main importer of Somalian bananas, and that from the fourth quarter of 1997 Tico temporarily took over that position. The reduction in the quantities of Somalian bananas available during the fourth quarter of 1997 and the first quarter of 1998 thus particularly affected the applicants, who would consequently have been the main ones to benefit from the increase in the tariff quota. Accordingly, the Commission's refusal to adjust the tariff quota clearly did not affect the applicants 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.
25 As a result, at paragraph 97 of the contested judgment, the Court of First Instance declared the claim for annulment in Case T-117/98 admissible.
26 Turning to the substance, the Court of First Instance started by stating, at paragraph 161 of the contested judgment, that, by the first plea in Case T-117/98, Camar and Tico were claiming that during the last quarter of 1997 and the first two quarters of 1998 the conditions for application of Article 16(3) of Regulation No 404/93 were satisfied having regard to the impact which El Niño had on production in Somalia.
27 The Court of First Instance noted at paragraph 163 of the contested judgment, that it follows particularly from paragraphs 27 and 31 of the judgment in T. Port , cited above, that two conditions must be satisfied at the same time if Article 16(3) is to be applied: there must be an exceptional circumstance affecting the production of Community bananas or imports of traditional ACP bananas, and there must be a risk of a shortfall in banana supplies to the Community market.
28 After finding, at paragraph 164 of the contested judgment, that the exceptional floods which occurred in Somalia from 1997 to 1998 as a result of the climatic phenomenon El Niño satisfied the first condition for application of Article 16(3) of Regulation No 404/93, the Court of First Instance continued, in relation to the second condition, as follows:
167 ... it should be pointed out, first of all, that the applicants do not need to prove that there was an actual shortfall in supplies to the Community market, they simply need to demonstrate that there was a risk of such a shortfall. The applicants' claim, not disproved by the Commission, that there was a significant drop in imports of Somalian bananas during the last quarter of 1997 and the first half of 1998 supports their contention that there was such a risk to the Italian market overall, and therefore to a substantial section of the Community market. The Commission did not provide any information to refute that claim when, in reply to a written question from the Court of First Instance, it explained that supplies to the Community market in 1997 could be regarded as adequate given that, faced with a 94 000 tonne reduction in imports of traditional ACP bananas (including 3 522 tonnes from Somalia) and an increase in Community demand of 86 000 tonnes, Community production had increased by some 126 000 tonnes and imports from third countries by some 64 000 tonnes compared with 1996.
168 First, as regards the increase in the production of Community bananas in 1997, the Commission has not explained how that increase could compensate for reductions in Somalian imports in 1998. Second, as regards the increase in imports from third countries in 1997 compared with 1996, it is clear from the figures supplied by the Commission itself that the imports in 1997 did not use up the tariff quota fixed in the forecast supply balance; it therefore cannot be claimed that there was an increase, compared with the forecast, which was capable of supplementing any shortfall in supply.
169 Furthermore, if, as the Commission's reply appears to suggest, the Commission actually based its assessment of the risk of a shortfall in supplies to the market in 1998 on the 1997 production figures for Community bananas, it would have committed an error of law in the application of Article 16 of Regulation No 404/93. As the Court of Justice explained in its judgment in T. Port (paragraph 31), if an increase in the production of Community bananas is to be taken into account in order to compensate for a reduction in imports of traditional ACP bananas which has occurred during a particular year, it must be an increase compared with the forecast supply balance for the same year rather than with production in the previous year.
170 Finally, the fact that, as the Commission accepted at the hearing, it receives figures relating to the situation of the banana market every week makes it difficult to understand why it has never, at any stage in the proceedings, provided figures for supplies to the Community market in 1998 in response to the applicants' claims. In those circumstances, by using only figures for 1997, the Commission gave further weight to the evidence provided by the applicants concerning the market situation in 1998.
171 It is clear from the above that, in the present case, the second condition for application of Article 16(3) is also satisfied.
29 Thus upholding the plea based on infringement of the conditions for application of Article 16(3) of Regulation No 404/93, the Court of First Instance declared the application for annulment in Case T-117/98 well founded without dealing with the other pleas put forward.
The appeal
30 The Commission claims that the Court should:
─ set aside the judgment;
─ declare the action in Case T-79/96 unfounded;
─ declare the action for annulment and damages in Case T-260/97 unfounded;
─ declare inadmissible, alternatively unfounded, the action in Case T-117/98;
─ order Camar and Tico to pay the costs of this appeal and the proceedings before the Court of First Instance.
31 Camar and Tico claim that the Court should:
─ dismiss the Commission's appeal;
─ order the Commission to pay the costs.
32 The Council requests the Court to:
─ reverse the contested judgment;
─ order Camar and Tico to pay the Council's costs relating to the proceedings at first instance, the interlocutory proceedings and this appeal.
33 The French Republic, which had intervened in support of the Commission's claims in Case T-79/96 and of those of the Commission and of the Council in Case T-260/97, claims that the Court should:
─ set aside the contested judgment;
─ as a result, declare the actions in Cases T-79/96 and T-260/97 unfounded;
─ order Camar and Tico to pay the costs.
34 The Italian Republic, which had intervened in support of Camar's claims in Case T-79/96, claims that the Court should:
─ dismiss the Commission's appeal;
─ order the Commission to pay the costs.
35 The Commission raises three grounds of appeal. One of those grounds is based on infringement, by the Court of First Instance, of two of the conditions of application of Article 30 of Regulation No 404/93 and concerns Cases T-79/96 and T-260/97. The other two grounds, which relate to Case T-117/98, are based on the infringement by the Court of First Instance of the conditions of admissibility of an action for annulment of a refusal to adopt a measure of general application and of the second of the conditions governing the application of Article 16(3) of Regulation No 404/93 referred to in paragraph 27 of this judgment. Conditions of application of Article 30 of Regulation No 404/93 (Cases T-79/96 and T-260/97) Arguments of the parties
36 The Commission, supported by the French Government, contends that, in accordance with the Court's case-law, the application of Article 30 of Regulation No 404/93 is subject to the satisfaction, in particular, of two conditions. They are, first, that the difficulties encountered by the undertaking concerned are due to the transition from the former national arrangements to the new Community arrangements and, second, that those difficulties are such as to threaten the existence of that undertaking.
37 On the first of those conditions, the Commission and the French Government complain that the Court of First Instance confined itself to stating, at paragraph 140 of the contested judgment, that the Italian arrangements before Regulation No 404/93 came into force were considerably more flexible than the system established by that regulation, without considering the real effects of the former arrangements on Camar's position and, in particular, the question whether they would have enabled that undertaking to overcome the difficulties connected to the importation of bananas from Somalia during 1995 and 1996.
38 On the second of those conditions, the Commission and the French Government maintain that, at paragraph 151 of the contested judgment, the Court of First Instance wrongly held that a threat to the existence of the undertaking concerned is not a necessary condition for the application of Article 30 of Regulation No 404/93 and that the Commission is obliged to take action under that provision even if no such threat exists. They rely, in that regard, particularly on paragraph 43 of the judgment in T. Port , cited above, where the Court held that Article 30 of [Regulation No 404/93] 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.
39 The Commission argues from the foregoing that the contested judgment should be annulled not only in that it upheld the actions for failure to act and annulment in Cases T-79/96 and T-260/97, but also in that, in Case T-260/97, it ordered the Commission to pay compensation for the damage suffered by Camar as a result of the Decision of 17 July 1997. It maintains, in the latter regard, that, under paragraph 206 of the contested judgment, its liability results from the fact that such decision was taken in breach of Article 30 of Regulation No 404/93. Since that was not the case, it should not have been held liable.
40 The Council also requests that the contested judgment be set aside in that it holds the Commission liable for the damage suffered by Camar. To that effect, it contends that it follows from the Court's case-law (see Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraphs 43 to 46) that it is not the individual or general nature of a measure but the discretion enjoyed by its author which determines whether its illegality gives rise to entitlement to compensation or whether it is necessary to establish a serious breach of a rule of law intended to confer rights on individuals. As a result, having regard to the Commission's broad discretion in the matter, the Court of First Instance was wrong to hold, at paragraph 206 of the contested judgment, that the mere illegality of the Decision of 17 July 1997 was sufficient to render the Community liable. It should have investigated whether that illegality constituted a serious breach of a rule of law intended to confer rights on individuals.
41 Camar and Tico, and the Italian Government, argue that the Commission is wrong in claiming that the Court of First Instance did not investigate whether the previous national arrangements would have enabled Camar to overcome the difficulties encountered in 1995 and 1996. Moreover they differ as to the effect of the judgment in T. Port , cited above, paragraph 43 of which is not intended to indicate that one of the conditions for the application of Article 30 of Regulation No 404/93 is that there be a threat to the existence of the operators concerned, but to compare Articles 30 and 16(3) of the same regulation. That paragraph should be read with reference to the specific question asked by the national court in that case. Findings of the Court
42 It is clear from the 22nd recital in the preamble to Regulation No 404/93 that Article 30 of that regulation is intended to deal with any disturbance in the internal market which the replacement, in the banana sector, of the various national markets by the common organisation of the market threatened to bring about. According to that recital, Article 30 gives the Commission the power to take any transitional measures required to overcome the difficulties of implementing the common organisation of the market. Furthermore, the Court has held that application of Article 30 is subject to the condition that the specific measures which the Commission must adopt are intended to assist transition from national arrangements to the common organisation of the market and that they are necessary for that purpose (see, particularly, Case C-442/99 P Cordis v Commission [2001] ECR I-6629, paragraph 12).
43 Not only did the Court of First Instance note, at paragraph 140 of the contested judgment, that the Italian arrangements before Regulation No 404/93 came into force were considerably more flexible than the Community system and that the introduction of the common organisation of the market had limited the scope for imports which existed under that national system, but it also found, at paragraph 143 of the contested judgment, that the difficulties in obtaining supplies of bananas encountered by Camar were a direct consequence of the introduction of the common organisation of the market precisely because that system had, in fact, significantly reduced the scope provided under the national arrangements for Camar to replace the shortfall in Somalian bananas.
44 In so doing, the Court of First Instance established to the requisite legal standard the existence of a link between the difficulties in obtaining supplies encountered by Camar and the replacement of the Italian arrangements before Regulation No 404/93 came into force by the common organisation of the market.
45 With reference to the objection of the Commission and the French Government that only difficulties threatening the existence of the undertaking concerned can justify the Commission's intervening under Article 30 of Regulation No 404/93, it is appropriate to point out that, after describing, at paragraph 143 of the contested judgment, the problems encountered by Camar as difficulties of a sensitive nature within the meaning of that provision, the Court of First Instance held, correctly, at paragraphs 150 and 151 of the judgment, that the requirement of difficulties threatening the existence of the undertaking cannot be deduced from the judgment in T. Port , cited above.
46 In the case which gave rise to that judgment, the Court was asked to reply to a question referred to it for a preliminary ruling, namely whether Article 16(3) or Article 30 of Regulation No 404/93 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 when an exceptionally low quota is allocated to them on the basis of the reference years to be taken into consideration under Article 19(2) of Regulation [No 404/93] (see T. Port , cited above, paragraphs 23 and 26).
47 By replying to that question to the effect that Article 30 but not Article 16(3) of Regulation No 404/93 applies to such a situation, the Court by no means ruled out that Article 30 could also apply to other types of difficulties, since they are inherent in the transition from national arrangements existing before that regulation entered into force to the common organisation of the market.
48 Any other interpretation would, in addition, be contrary to the wording of Article 30 of Regulation No 404/93 as well as its objective as it appears from the 22nd recital in the preamble to that regulation, which in no way requires the application of that article to be restricted to cases of difficulties threatening the existence of the undertaking concerned.
49 Therefore, the ground of appeal based on infringement, by the Court of First Instance, of the conditions governing the application of Article 30 of Regulation No 404/93 must be dismissed.
50 As a result, the claim for a declaration that the actions for failure to act and annulment in Cases T-79/96 and T-260/97 are unfounded cannot be upheld.
51 With regard to the claim that the contested judgment should be set aside in so far as it orders the Commission to pay compensation for the damage pleaded by Camar in Case T-260/97, it also follows from the foregoing that the Commission's ground of appeal that such order was based on a mis-application of Article 30 of Regulation No 404/93 must be dismissed.
52 As for the Council's ground of appeal complaining that the Court of First Instance based itself, in order to hold the Commission liable, on its case-law according to which, in the field of administrative action, any infringement of the law constitutes illegality that is capable of rendering the Community liable, it is appropriate to point out that the system of rules which the Court has worked out in relation to the non-contractual liability of the Community takes into account, inter alia , the complexity of the situations to be regulated, difficulties in the application or interpretation of the texts and, more particularly, the margin of discretion available to the author of the act in question (see Joined Cases C-46/93 and C-48/93 Brasserie du pêcheur and Factortame [1996] ECR I-1029, paragraph 43, and Bergaderm and Goupil v Commission , cited above, paragraph 40).
53 It is appropriate to point out also that, Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see the judgments cited above Brasserie du pêcheur and Factortame , paragraph 51, and Bergaderm and Goupil v Commission , paragraphs 41 and 42).
54 As to the second condition, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion (see the judgments cited above Brasserie du pêcheur and Factortame , paragraph 55, and Bergaderm and Goupil v Commission , paragraph 43). Where that institution 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 (Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 28; Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94 Dillenkofer and Others [1996] ECR I-4845, paragraph 25; Case C-127/95 Norbrook Laboratories [1998] ECR I-1531, paragraph 109; Case C-424/97 Haim [2000] ECR I-5123, paragraph 38, and Bergaderm and Goupil v Commission , cited above, paragraph 44).
55 It follows from the foregoing that the decisive test for determining whether there has been such an infringement is not the individual nature of the act in question, but the discretion available to the institution when it was adopted.
56 In those circumstances, it must be held that the Court of First Instance made an error of law when it held that the Commission's liability could arise from the mere illegality of the Decision on 17 July 1997, without taking account of the discretion which the Commission enjoyed in the adoption of that measure.
57 However, it should be pointed out that where the grounds of a judgment of the Court of First Instance disclose an infringement of Community law but the operative part of the judgment is shown to be well founded for other legal reasons, the appeal must be dismissed (see Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28, and Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 58).
58 At paragraph 145 of the contested judgment, the Court of First Instance held that, as the Court of Justice pointed out in paragraph 38 of its judgment in T. Port , cited above, the Commission has a broad discretion when assessing whether transitional measures are necessary on the basis of Article 30 of Regulation No 404/93.
59 Furthermore, as is apparent from paragraph 18 of this judgment, the Court of First Instance concluded, at paragraph 149 of the contested judgment, both that the Commission had committed a manifest error of appraisal in considering that Camar was capable of overcoming the difficulties caused by the transition from the Italian national arrangements to the Community system by relying on the operation of the market, and that the only way that Camar could deal with the difficulties it faced was for the Commission to adopt transitional measures as provided for in Article 30 of Regulation No 404/93.
60 Such manifest and grave disregard, by the Commission, of the limits placed on its discretion is a sufficiently serious infringement of Community law, within the meaning of the case-law cited at paragraphs 53 and 54 of this judgment, and is therefore such as to render the Community liable.
61 Since it has not been disputed that the other conditions essential to the non-contractual liability of the Community are satisfied in this case, the Court of First Instance correctly upheld the claim for compensation against the Commission in Case T-260/97.
62 As a result, the claim that the contested judgment should be set aside, in so far as it orders the Commission to compensate Camar for the damage pleaded in this case, must be dismissed. Conditions of admissibility of an action for annulment of a refusal to adopt a measure of general application (Case T-117/98) Arguments of the parties
63 According to the Commission, the Council and the French Government, the Court of First Instance wrongly held, at paragraph 96 of the contested judgment, that the regulation which the Commission was supposedly required to adopt under Article 16(3) of Regulation No 404/93 concerned Camar and Tico individually because they were the main importers of Somalian bananas and were thus affected by reason of circumstances in which they were differentiated from all other operators trading on the same market.
64 For those three parties, the measure requested, namely an increase of the tariff quota for imports of bananas from third countries and non-traditional ACP countries provided for by Article 18 of Regulation No 404/93, could be taken only by way of an act of general and abstract application the legislative nature of which, under the case-law of the Court of Justice and the Court of First Instance, could be put in issue only if it were possible to determine more or less precisely the number or even the identity of the individuals to whom it applies at any given time, since it is common ground that such application takes effect by virtue of an objective legal or factual situation defined by the measure in relation to its purpose.
65 They also maintain that the fact of subjecting the admissibility of an action brought by an undertaking to an examination of that undertaking's position on a market would make access to the legal remedies laid down by the Treaty depend on judicial assessment of developments on that market and would procure for the largest undertakings privileged locus standi which would be contrary to the principle of non-discrimination.
66 The Council contends, furthermore, that, if the situation had genuinely necessitated an adjustment of the tariff quota under Article 16(3) of Regulation No 404/93, the Commission would not have been obliged to allocate the additional quantities to importers of Somalian bananas, so that, contrary to the statement of the Court of First Instance at paragraph 96 of the contested judgment, Camar and Tico would not necessarily have been the principal beneficiaries of the regulation which the Commission declined to adopt.
67 Camar, Tico and the Italian Government argue that the Court of First Instance's conclusions as to the admissibility of the application for annulment of the Commission's refusal to act under Article 16(3) of Regulation No 404/93 cannot be challenged on appeal, given that they were based on findings of fact relating to the position of those two companies on the market.
68 Alternatively, Camar, Tico and the Italian Government maintain that the Court of First Instance correctly applied the case-law of the Court of Justice and the Court of First Instance in that respect. In that point, they maintain in particular that, in adopting the requisite measures, the Commission should have provided not only for an increase of the tariff quota, but also specific rules and procedures for allotting the additional quantity allocated so as to ensure that Camar and Tico were effectively able to take advantage of them. Findings of the Court
69 With regard to the admissibility of this ground of appeal, while it is true 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 and that, therefore, the Court of First Instance has, in principle, sole jurisdiction to find and appraise the facts, the Court of Justice nevertheless has jurisdiction to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, among others, Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 21, and Case C-449/99 P EIB v Hautem [2001] ECR I-6733, paragraphs 44 and 45).
70 In this case the Commission, the Council and the French Government do not challenge the fact, found by the Court of First Instance, that Camar and Tico were the main Community importers of Somalian bananas, but contend that such finding is not sufficient to conclude that those companies were concerned individually by the regulation which they had requested the Commission to adopt under Article 16(3) of Regulation No 404/93.
71 Since it thus puts in issue the legal conclusions which the Court of First Instance drew from that finding of fact, that ground of appeal must be declared admissible.
72 With a view to evaluating the merits of that ground of appeal, it is appropriate to point out, at the outset, that the parties do not challenge the finding, made by the Court of First Instance at paragraph 93 of the contested judgment, that the rejection by the Commission which was the subject-matter of the application in Case T-117/98, relates to the adoption of a regulation and, therefore, individuals may seek annulment of that decision only if they demonstrate that that regulation would have been of direct and individual concern to them.
73 According to the Court's consistent case-law a measure of general application such as a regulation can be of individual concern to natural and legal persons only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (see, particularly, Case C-451/98 Antillean Rice Mills v Council [2001] ECR I-8949, paragraph 49, and Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 36).
74 However, as the Commission, the Council and the French Government have pointed out, the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as it is established that that application takes effect by virtue of an objective legal or factual situation defined by the measure in question (see, in particular, Antillean Rice Mills v Council , cited above, paragraph 52).
75 Having regard to the foregoing, it must be held that Camar and Tico were not concerned individually by the regulation which, according to them, the Commission should have adopted, under Article 16(3) of Regulation No 404/93, in order to adjust the tariff quota fixed by Article 18 of that regulation to deal with the effect on banana production in Somalia of the exceptional floods in 1997 and 1998.
76 Even if that regulation could have derogated, in respect of the fraction of the tariff quota which is adjusted, from the allocation formula fixed by Article 19(1) of Regulation No 404/93 (see, to that effect, Joined Cases C-9/95, C-23/95 and C-156/95 Belgium and Germany v Commission [1997] ECR I-645, paragraph 34), it would have concerned Camar and Tico only by reason of their objective status of importers of Somalian bananas, in the same way as every other operator in a similar situation.
77 Camar and Tico cannot be regarded as being concerned individually by that regulation on the ground that, as main importers of Somalian bananas, they might have benefited more from it than other operators, given that the fact that a legal provision may have different specific effects on the various persons to whom it applies is not inconsistent with its nature as a regulation when that situation is objectively defined (see, in particular, Case 101/76 Koninklijke Scholten Honig v Council and Commission [1977] ECR 797, paragraph 24, and Case C-96/01 P Galileo and Galileo International v Council [2002] ECR I-4025, paragraph 41).
78 Clearly, as the Court pointed out in paragraph 44 of the judgment in Unión de Pequeños Agricultores v Council , cited above, the condition that natural or legal persons may bring an action challenging a regulation only if they are concerned individually must be interpreted in the light of the principle of effective judicial protection by taking account of the various circumstances that may distinguish an applicant individually.
79 It must, however, be stated that, at paragraph 96 of the contested judgment, the Court of First Instance based itself solely on the fact that Camar and Tico were the main importers of Somalian bananas when it concluded that they were concerned individually by the regulation which they had requested the Commission to adopt under Article 16(3) of Regulation No 404/93.
80 In those circumstances, the ground of appeal alleging infringement, by the Court of First Instance, of the conditions of admissibility of an application for annulment of a refusal to adopt a measure of general application is well founded.
81 Consequently, the contested judgment must be set aside in so far as it upheld, in Case T-117/98, the action for annulment of the Commission's Decision of 23 April 1998 rejecting the application by Camar and Tico under Article 16(3) of Regulation No 404/93, without there being any need to consider the merits of the ground of appeal alleging infringement of one of the conditions governing the application of Article 16(3) of that regulation.
82 In accordance with the second sentence of the first paragraph of Article 54 of the EC Statute of the Court of Justice, if the Court quashes a decision of the Court of First Instance, it may itself give final judgment in the matter, where the state of the proceedings so permits. So it is in this case.
83 Since Camar and Tico have not put forward any circumstance other than that accepted by the Court of First Instance to warrant the admissibility of the action for annulment in Case T-117/98, it is sufficient to hold in that regard, that it follows from paragraphs 72 to 79 of this judgment that that action must be dismissed as inadmissible.
Costs
84 Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, it shall make a decision as to costs.
85 Under Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs, if they have been applied for in the successful party's pleadings. Since Camar and Tico have been unsuccessful in Case T-117/98 and the Commission has applied for costs, Camar and Tico must be ordered to pay the costs of that case.
86 Under Article 69(3) of the Rules of Procedure, which applies to appeals by virtue of Article 118 of those rules, the Court of Justice may, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, order that the costs be shared or that the parties bear their own costs. Since the Commission and Camar and Tico have each been unsuccessful on one head it is appropriate to order that they bear their own costs in the appeal proceedings.
87 Under Article 69(4) of the Rules of Procedure, which also applies to appeals by virtue of Article 118 of those rules, the Member States and institutions which intervene in the proceedings are to bear their own costs. Applying that provision, the Council, the French Republic and the Italian Republic shall bear their own costs in the appeal proceedings.
On those grounds,
THE COURT,
hereby:
1. Sets aside the judgment of 8 June 2000 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 in so far as it allowed, in Case T-117/98, the application for annulment of the Decision of the Commission of the European Communities of 23 April 1998 rejecting the application made by Camar Srl and Tico Srl on the basis of Article 16(3) of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the markets in the banana sector;
2. Dismisses the remainder of the appeal;
3. Dismisses the application for annulment in Case T-117/98 as inadmissible;
4. Orders Camar Srl and Tico Srl to pay the costs in Case T-117/98;
5. Orders the parties to bear their own costs in the appeal proceedings.
Rodríguez Iglesias
Puissochet
Wathelet
Schintgen
Timmermans
Gulmann
Edward
La Pergola
Jann
Skouris
Macken
Colneric
von Bahr
Cunha Rodrigues
Rosas
Delivered in open court in Luxembourg on 10 December 2002.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
1 – Language of the case: Italian.
Full & Egal Universal Law Academy