Keywords
Summary

Keywords

1. Appeals — Pleas in law — Inadequate statement of reasons — Action seeking to establish the non-contractual liability of the Community — Unlawfulness of Regulation No 2362/98 allegedly giving rise to the damage complained of — Judgment not examining the alleged unlawfulness — Appeal well founded

2. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link

(Art. 288, 2nd para., EC)

3. Agriculture — Common organisation of the markets — Bananas — Import arrangements — Tariff quota — Allocation and distribution — Delegation of implementing power to the Commission entailing broad discretion on its part — No manifest error of assessment

(Art. 211 EC; Council Regulation No 404/93, Arts 19(1) and 20; Commission Regulation No 2362/98)

4. Community law — Principles — Fundamental rights — Restrictions — Whether permissible — Conditions — Common organisation of the markets — Tariff quotas for imports of bananas — Right to property — Vested right — Freedom to pursue a trade or profession — No infringement

(Art. 33 EC; Council Regulation No 404/93; Commission Regulation No 2362/98)

5. Agriculture — Common organisation of the markets — Import licences — Allocation of reference quantities — Guarantee of the availability of those reference quantities and of the right to export those quantities — None

Summary

1. In order to exclude any liability on the part of the Commission, the Court of First Instance must, in proceedings seeking to establish the non-contractual liability of the Community, ascertain whether, over and above the difficulties encountered by the applicants in making full use of their reference quantities and import licences, the cause of the damage alleged by them does not indeed lie in the alleged illegality of Regulation No 2362/98 laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community and, in particular, in the method of combined management of tariff quotas introduced by the Commission, which, they claim, then gave rise directly to the commercial difficulties encountered by traditional third country operators, who in the end were obliged to import ACP bananas.

Such a determination by the Court of First Instance is required a fortiori since the alleged illegality of that regulation is an essential part of the reasoning set out in their actions by the applicants, who seek to prove the adverse repercussions of that legislation for the business of undertakings traditionally importing third-country bananas, in the light of the difficulties encountered by them in obtaining supplies of ACP bananas.

In this respect, by omitting to examine whether the alleged illegality of Regulation No 2362/98 can be the cause of the damage alleged, the Court of First Instance failed to state sufficient grounds for its judgment.

(see paras 57-59)

2. The Community’s non-contractual liability under the second paragraph of Article 288 EC is subject to the satisfaction of a set of conditions as regards the unlawfulness of the conduct alleged against the Community institution, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of.

(see para. 61)

3. It is clear from the Treaty context in which Article 211 EC must be placed and also from practical requirements that the concept of implementation must be given a wide interpretation. Since only the Commission is in a position to keep track of agricultural market trends and to act quickly when necessary, the Council may confer on it wide powers in that sphere. Consequently, the limits of those powers must be determined by reference amongst other things to the essential general aims of the market organisation in question.

In matters relating to agriculture, the Commission is authorised to adopt all the implementing measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council.

Since Regulation No 2362/98 laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community was adopted by the Commission on the basis of Articles 19(1) and 20 of Regulation No 404/93 and confers on the Commission the task of adopting measures for the management of the tariff quotas based on taking account of traditional trade flows, adopting any specific provisions needed to facilitate the switch from the import arrangements applying on and after 1 July 1993 to the arrangements of Title IV of Regulation No 404/93, and taking the measures needed to ensure respect for obligations stemming from agreements concluded by the Community under Article 300 EC, the applicants have not demonstrated that the Commission failed to have regard to the relevant basic legislation or that it manifestly exceeded the limits of the discretion conferred on it by the Council in the choice of implementing arrangements.

(see paras 74-77, 81)

4. Both the right to property and the freedom to pursue a trade or profession form part of the general principles of Community law. However, those principles do not constitute absolute prerogatives, but must be viewed in relation to their social function. Consequently, the exercise of the right to property and to pursue a trade or profession freely may be restricted, particularly in the context of a common organisation of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and that they do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed.

With regard, first, to the right to property of importers of third-country bananas, that right is not undermined by the introduction of the Community quota and the rules for its subdivision. No economic operator can claim a right to property in a market share which he held at a time before the establishment of a common organisation of a market, since such a market share constitutes only a momentary economic position exposed to the risks of changing circumstances. Nor can a trader claim that he has a vested right or even a legitimate expectation as to the maintenance of an existing situation which is capable of being altered by decisions taken by Community institutions in the exercise of their discretion.

With regard, secondly, to the alleged infringement of the freedom to pursue a trade or profession, the introduction of a method of combined management of the tariff quotas, such as that provided for by Regulation No 2362/98 laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community, is in fact such as to alter the competitive position of importers of third‑country bananas in so far as, under that method, all operators, without distinction, can import bananas of any origin whatsoever. However, although importers of third-country bananas are thus in competition with importers of ACP bananas, they no longer suffer the 30% reduction of their imports, provided for by the earlier arrangement, to the advantage of Category B importers of ACP bananas. Moreover, they are also free, under the new arrangement, to acquire ACP bananas, since the alleged difficulties in finding suppliers able to supply them with ACP bananas are not such as to affect the legality of an arrangement which specifically grants them the right to import such bananas under the Community quota. In any event, restrictions on the right to import third-country bananas resulting from the opening of any tariff quota and from the machinery for its subdivision are inherent in the establishment of a common organisation of the market designed to ensure that the objectives of Article 33 EC are safeguarded and that the Community’s international obligations are complied with. Such restrictions are therefore not such as to impair improperly the freedom of traditional traders in third-country bananas to pursue their trade or business.

(see paras 86, 88-91)

5. A reference quantity allocated to an operator in the context of a common organisation of the market represents the maximum quantity up to which that operator may, during a given year, submit applications for import licences in order to enjoy the rights attaching to a tariff quota. The allocation of reference quantities therefore does not guarantee either the availability of those quantities or the right for operators actually to export to the Community all the quantities allocated under the tariff quota.

(see para. 87)