C-472/00

OPINION OF MRS STIX-HACKL — CASE C-472/00 P

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 28 November 2002 1

I — Introduction II — Legal background and facts

A — Legal background

2. Article 8(3) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community 4('the Basic Regulation') pro- vides:

1. This is an appeal against the judgment of the Court of First Instance of 24 October 2000 in Case T-178/98, 2 in which the Commission was ordered to pay Fresh 'Undertakings offered need not be Marine Company AS ('Fresh Marine') accepted if their acceptance is considered compensation for the damage suffered by impractical, if such as where the number of it in connection with Commission Regu- actual or potential exporters is too great, or lation (EC) No 252W97, 3by which the for other reasons, including reasons of Commission introduced provisional anti- general policy. The exporter concerned dumping and countervailing duties on may be provided with the reasons for imports of farmed Atlantic salmon orig- which it is proposed to reject the offer of inating in Norway. an undertaking and may be given an opportunity to make comments thereon. The reasons for rejection shall be set out in 1 — Original language: German. the definitive decision.' 2 — Case T-178/98 Fresh Marine Company v Commission [2000] ECR 11-3331. 3 — Commission Regulation (EC) No 2529/97 (OJ 1997 L 346, p. 63). 4 — OJ 1996 L 56, p. 1.

'If evidence or information is not accepted, the supplying party shall be informed forthwith of the reasons therefor and shall 8. On 17 June 1997, Fresh Marine, having be granted an opportunity to provide been informed of the Commission's find- further explanations within the time limit ings, offered an undertaking pursuant to specified. If the explanations are considered unsatisfactory, the reasons for rejection of such evidence or information shall be 5 — Sec Case T-178/98 (cited at footnote 2), paragraphs 1 to 21. disclosed and given in published findings.' 6 — OJ 1996 C 253, pp. 18 and 20.

I - 7545

OPINION OF MRS STIX-HACKL — CASE C-472/00 P

7 — OJ 1994 L 349, p. 22. 8 — Decision 97/634/EC of 26 September 1997 accepting undertakings offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of farmed Atlantic salmon originating in Norway (OJ 1997 L 267, p. 81). 9 — Regulation (EC) No 1890/97 of 26 September 1997 impos- ing a definitive anti-dumping duty on imports of farmed 12. By letter of 19 December 1997, the Atlantic salmon originating in Norway (OJ 1997 L 267, p. 1). Commission informed Fresh Marine of the 10 — Council Regulation (EC) No 1891/97 of 26 September 1997 imposing a definitive countervailing duty on imports of farmed Atlantic salmon originating in Norway (OJ 1997 L 267, p. 19). 11 — See footnote 8.

I - 7546

COMMISSION v FRESH MARINE

13. By fax of 22 December 1997, Fresh Marine complained that the Commission had manipulated the October 1997 report by deleting a number of lines which were intended to cancel lines containing errors. Pointing out that it had ceased all exports to the Community since the entry into force of Regulation No 2529/97, and was suf- fering considerable loss as a result, it asked 15. On 6 January 1998, Fresh Marine sent for the immediate lifting of the sanctions the Commission an amended version of the taken against it. October 1997 report. On 8 January 1998, the Commission sent Fresh Marine an amended version of that report, modified in accordance with the explanations pro- vided by Fresh Marine the day before. Fresh Marine was asked to let the Com- mission know in writing whether it agreed with the content of the new version. Fresh 14. By letter of 5 January 1998, the Com- Marine confirmed that by fax of 9 January mission rejected Fresh Marine's allegations. 1998, stating that it had nothing further to It explained that it had decided to delete a add. It pointed to considerable business number of lines from the October 1997 losses, insisting that the situation be report containing quantities and values resolved and the provisional duties abol- preceded by a minus sign, which, in the ished before the expiry of the period absence of explanations in the report, could prescribed by Regulation No 2529/97 not be offset against the corresponding within which interested parties could make invoices. It added that, if the applicant sent their points of view known.

COMMISSION v FRESH MARINE

present case must be pointed out. In the Instance took the view that a mere infringe- present case, the damage at issue arose ment of Community law was sufficient to from the allegedly unlawful conduct of the lead to the non-contractual liability of the Commission when it examined the October Community. In particular, a finding of an 1997 report with the intention of checking error which, in analogous circumstances, whether Fresh Marine had complied during an administrative authority exercising ordi- the third quarter of 1997 with the under- nary care and diligence would not have taking, the acceptance of which had committed supports the conclusion that the brought to an end the anti-dumping and conduct of the Community institution was anti-subsidy investigation in regard to it. unlawful in such a way as to render the That allegedly unlawful conduct led the Community liable. It is therefore necessary Commission to believe that the applicant to examine whether the Commission, when had broken its undertaking. It took place in monitoring compliance by Fresh Marine the course of an administrative operation with its undertaking on the basis of the which specifically and exclusively con- October 1997 report, committed an error cerned Fresh Marine. That operation did which an administrative authority exercis- not involve any choices of economic policy ing ordinary care and diligence would not and conferred on the Commission only very have committed in the same circum- little or no discretion. The Court of First stances. 15 Instance concluded further that it was true that the alleged unlawfulness of the Com- mission's conduct caused the alleged dam- age only when, and because, it was con- firmed by the imposition of provisional duties on imports of Fresh Marine's prod- ucts within the framework of Regulation No 2529/97. However, the Commission, in that regulation, did no more with regard to the applicant than draw the appropriate provisional conclusions from its analysis of the abovementioned report, in particular from the level of the average price of exports charged by Fresh Marine during the period covered by that report. 13

negative entries. The last page of that the abovementioned minimum average report contains the following final entries: price, as it had been ECU 3.3026 per kg (ECU 1 577 762.37/477 725.50 kg). Even if it is accepted that the terms of Fresh Marine's undertaking did not provide for the possibility of including negative values in the quarterly sales reports, the Commis- sion could not, when faced with a report which, at first glance, suggested that Fresh Marine had complied with its undertaking, Sum of Qtyw (kg) 477 725.50 take it upon itself unilaterally to change the content of that report by deleting those lines containing negative values and replac- ing them with other values based on its Sum of CIF value * Qtyw 1 577 762.37 own calculations — on the basis of the report thus amended —• of the average export price charged by Fresh Marine during the period in question, without Sum of Qtyw sold explaining to Fresh Marine the reasons prompting it to ignore those final entries at below 85% of minimum and without checking with Fresh Marine price in kg 0.00 whether the changes so made affected the reliability of the information provided in order to monitor compliance with the undertaking. Having decided not to accept ...'. 16 the first impression given by the October 1997 report, which was favourable to Fresh Marine, the Commission was bound to exercise due care in interpreting correctly the data provided in that report, on which it intended to base its finding as to whether 23. On reading those final entries in the or not the applicant's conduct amounted to October 1997 report, the Court of First compliance with the undertaking during Instance found that, at first sight, it was the period in question. 17 possible to adopt the view that Fresh Marine had observed its undertaking dur- ing the period covered by that report. Indeed, it showed that it had not concluded any individual transaction on the basis of a price below the threshold of 85% of the average minimum price of ECU 3.25 per kg fixed in the undertaking for its exports of farmed Atlantic salmon gutted head-on, 24. The Court of First Instance found that and that their average price during the Fresh Marine could not rely on the provi- period in question had been greater than sions of Article 8(10) of the Basic Regu-

lation. That provision enables the Commis- report appeared to show, at first sight, that- sion, where there are grounds for believing Fresh Marine had complied with the under- on the basis of the best information avail- taking. Moreover, as soon as the Commis- able to it that an undertaking which it has sion chose to amend that report, which, initially accepted in the context of an prima facie, suggested that Fresh Marine anti-dumping or anti-subsidy proceeding had complied with its undertaking, the has been breached, to take in good time any urgency of the situation could not excuse necessary provisional measures in order to a relaxation of the duty of diligence incum- protect the interests of the Community bent upon the Commission when analysing industry, without prejudice to a subsequent the evidence on which it intended to base examination of the merits in order to check its finding. When analysing the October whether the undertaking in question has in 1997 report, the Commission therefore fact been breached. However, the October committed an error which would not have 1997 report, in particular its final entries, been committed in similar circumstances by suggested that Fresh Marine had complied an administrative authority exercising ordi- with its undertaking. It was after it had nary care and diligence. 19 amended that report on its own initiative, without taking the precaution of asking Fresh Marine what possible impact its unilateral action might have on the relia- bility of the information which Fresh Marine had provided, that the Commission concluded that there had been an apparent breach of the undertaking by Fresh Marine. The data amended in that way evidently 26. However, the Court of First Instance cannot therefore be considered the best found that Fresh Marine's conduct was not information, within the meaning of blameless either. As the Commission Article 8 of the Basic Regulation. 18 observed, Fresh Marine offered no expla- nations for the lines of the October 1997 report which contained negative values. In view of the complexity of that report, the lack of obvious links between the erroneous lines and those containing negative values, and the ambiguity of those values, Fresh Marine should on its own initiative have accompanied the report with the expla- nations necessary to understand it. By 25. The fact that in the run-up to the sending the October 1997 report without end-of-year celebrations, a particularly any comment to that effect, Fresh Marine important period for salmon sales, the was guilty of negligence which, as the letter Commission was obliged to analyse more which the Commission sent it on 5 January than 90 reports similar to the October 1997 1998 shows, confused the Commission's report cannot, in the Court of First officials. Clarification in that regard would Instance's view, justify unilateral changes have allowed them to understand from the to that report by the Commission, when the outset that there was good reason for those

27. The analysis makes clear that Fresh Marine and the Commission were equally 28. So far as concerns the loss of profit at fault during the investigation as to between 18 December 1997 and 25 March whether the applicant had complied with 1998, the Court of First Instance states that its undertaking during the third quarter of the figures given by the Commission for 1997, at the end of which the Commission exports of farmed Atlantic salmon by Fresh found that there had been an apparent Marine to the Community between July breach of the undertaking making it necess- 1997 and September 1998 show that Fresh ary to take provisional measures against Marine wholly suspended its exports dur- imports of Fresh Marine's products by ing the period from approximately mid- Regulation No 2529/97. For its part, Fresh December 1997 to the end of March 1998. Marine, by failing of its own accord to That suspension of its business activities on append to its October 1997 report the the Community market was confirmed by explanations required for the correct the auditing firm's certificate, which states: understanding of the negative values appearing in it, showed such negligence as would never have been committed by a trader exercising ordinary care and dili- gence. Even taking into consideration such irregular conduct on the part of Fresh Marine and the confusion which such conduct may have caused when the report '[W]e hereby confirm that according to the books of the [applicant], no sales of Atlan-

20 — See Case T-178/98 (cited at footnote 2), paragraphs 84 and 89. 21 — See Case T-178/98 (cited at footnote 2), paragraph 91.

tic salmon have been made to the Commu- between the loss or damage to the appli- nity in the period between 18 December cant's business and the wrongful conduct of 1997 and 25 March 1998.' 22 the Commission, confirmed by Regulation No 2529/97. There is a causal link for the purposes of the second paragraph of Article 215 of the EC Treaty where there is a direct causal nexus between the fault committed by the institution concerned and 29. In light of those circumstances, the the injury pleaded, the burden of proof of Court of First Instance found it necessary which rests on the applicant. The Commu- to assess the amount of the loss of profit nity can be held liable only for damage suffered by Fresh Marine as a result of the which is a sufficiently direct consequence of suspension of its exports to the Community the misconduct of the institution con- between 18 December 1997 and 25 March cerned. 24 1998. That loss of profit equated to the profit margin which Fresh Marine would have achieved if it had continued to export to the Community during that period. In order to make the assessment, it was necessary first to determine at what rate the applicant's exports to the Community diminished following the entry into force on 1 July 1997 of its undertaking, which 31. In the Court of First Instance's view, it would in any event still have applied if it is clear from the abovementioned certifi- had continued to export to the Community cate issued by the firm of auditors that the during the period in question. For a reliable period during which Fresh Marine sus- calculation, the trends in the applicant's pended its exports to the Community sales within the Community during the coincides with that during which the pro- period from 1 July to 17 December in the visional measures imposed by Regulation years 1996 and 1997 had to be examined. No 2529/97 applied to imports of its The loss of profit suffered by Fresh Marine products. That indicates the existence of a therefore had to be fixed at NOK 292 000 causal link between the irregularities, in in respect of the period between particular those committed by the Com- 18 December 1997 and 31 January 1998, mission, giving rise to the imposition of NOK 135 000 in respect of February 1998 provisional measures and Fresh Marine's and NOK 150 000 in respect of the period loss of profit. It is, indeed, undeniable that, from 1 to 25 March 1998. 23 were it not for such irregularities and the provisional measures which followed them, Fresh Marine would have continued its exports to the Community in compliance with its undertaking. It would thus have suffered no loss of profit on the Commu- 30. Further, the Court of First Instance nity market. The misconduct of the Com- considers whether there is a causal link mission, when analysing the October 1997 report, which was confirmed by Regulation

33. However, even supposing that Fresh Marine, which has not disputed the Com- mission's statements regarding the cost of an appropriate bank guarantee, had obtained one, it would have run an unusual commercial risk, beyond the level of risk inherent in any commercial enterprise, by exporting to the Community during the period when Regulation No 2529/97 was 34. On the other hand, as is shown by the applicable to imports of its products. If, letters of 30 January and 2 February 1998 once that bank guarantee had been issued, analysed above, the Commission did not it had, as the Commission suggests, decided take the necessary and appropriate meas- to export to the Community at unchanged ures which the party causing the damage prices without passing on to its Community must take where damage, such as that at issue here, is ongoing in order to limit the

25 — See Case T-178/98 (cited at footnote 2), paragraphs 119 and 120. 27 — See Case T-178/98 (cited at footnote 2), paragraphs 124 26 — See Case T-178/98 (cited at footnote 2), paragraph 121. and 125.

I - 7554

COMMISSION v FRESH MARINE

28 — See Case T-178/98 (cited at footnote 2), paragraphs 135 and 136. 29 — Sec Case T-178/98 (cited at footnote 2), paragraph 137. — dismiss the appeal;

I - 7555

OPINION OF MRS STIX-HACKL — CASE C-472/00 P

— set aside the judgment in so far as it not, as the Court of First Instance held, holds it to be co-liable; caused by its allegedly unlawful conduct with respect to the examination of the October 1997 report.

— order the Commission to pay NOK 577 000 (NOK 292 000 in respect of the period from 18 December 1997 to 31 January 1998, NOK 135 000 in respect of February 1998 and NOK 1. Arguments of the parties 150 000 in respect of the period from 1 to 25 March 1998);

— order the Commission to pay its costs 39. The Commission justifies its sub- both at first instance and on appeal; mission by claiming that the administrative act of analysing the October 1997 report could not have caused the damage but, rather, the entry into force of Regulation No 2529/97, which cancelled the under- — order the Commission to pay interest taking and imposed anti-dumping duties. on the sum of NOK 577 000 and the Every Commission regulation is preceded cost of proceedings at the annual rate by administrative acts. However, since of 8% from the date of the contested Regulation No 2529/97 is lawful, there is judgment. no unlawfulness, which is a requirement of Community liability. Since Fresh Marine itself takes the view that the damage took effect only upon the entry into force of that regulation, this ground of appeal should be allowed.

42. In accordance with the case-law of the Court of Justice, it is clear 'from 45. On the other hand, it should be borne Article 168a of the Treaty [now in mind that, in the case-law expressly Article 225 EC] and Article 51 of the EC based on Brazzelli Lualdi, 33 the Court of Statute of the Court of Justice that an Justice draws a distinction between, on the appeal may be based only on grounds one hand, the establishment and assessment relating to the infringement of rules of law, of the facts, which cannot be reviewed, to the exclusion of any appraisal of the and, on the other, the defining of the legal facts. The Court of First Instance has nature of those facts and the determination exclusive jurisdiction, first, to establish of their legal consequences. the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts'. 30 46. Given that, in its first ground of appeal, the Commission contests the erroneous

31 — Case C-13/99 P (cited at footnote 30), paragraph 66. 43. Therefore, it is not for the Court of 32 — Case C-62/01 P Campogrande v Commission [2002) ECR Justice, in determining an appeal, to con- I-3793, paragraph 24, and Case C-362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I-4775, paragraphs 28 and 29. 33 — Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 49, and Case 30 — Case C-13/99 P Team v Commission [2000] ECR I-4671, C-284/98 P Parliament v Bieber [2000] ECR I-1527, paragraph 63. paragraph 31.

5 1 . However, in order that both sets of conduct can be regarded, individually, as causal, it must be possible to separate the 48. The first ground of appeal essentially administrative conduct from the legislative concerns a question of causation, or, to be measure subsequently adopted. more precise, the connection between the act and the breach of duty rather than that between the breach of duty and the dam- age. The facts established by the Court of First Instance and the arguments of the parties show that, in theory, two acts of the Commission may be regarded as circum- 52. The view that they can be separated is stances giving rise to liability: the treatment supported, firstly, by the fact that they did of the report and the adoption of the not coincide temporally and, secondly, by regulation. The former is an administrative the fact that a different party acted 'as the error and the latter a legislative error. Commission' in each case. The report was

34 — Case C-284/98 P (cited at footnote 33), paragraph 52 et 35 — Case C-284/98 P (cited at footnote 33), paragraph 52 et seq. seq.

I - 7558

COMMISSION v FRESH MARINE

dealt with by the competent Commission 55. In contrast, the present case is not- staff while the legislative measure was concerned with the relationship between adopted by the Commission as a collegiate the proposed and the adopted legislative body. measure but, rather, with the relationship between the two sets of conduct and the damage.

57. While the Court of First Instance, in paragraph 57 of the contested judgment, found that the damage had been caused by 54. In connection with a separate assess­ the alleged misconduct of the Commission ment of both sets of conduct, reference was when examining the report, it nevertheless frequently made in the proceedings to the limited the scope of that finding by stating BASF case. 3 6 However, as the Commission in paragraph 58 of its judgment that 'the rightly submitted, that case was concerned Commission's conduct caused the alleged with a different set of facts, namely a damage only when, and because, it was procedural defect in the adoption of a confirmed by the adoption of provisional legislative measure. The case involved the measures'. If one disregards the question­ decision-making process immediately able description of the regulation as 'con­ preceding the adoption of a legislative firmation', it is clear that, in the Court of measure and, essentially, concerned the First Instance's view, the damage was relationship between the formation of caused only once the duties had been intent by an institution and the form in imposed. which that intent is expressed.

37 — Sec, inter aha, Joined Cases 64/76 and 113/76, 167/78 and 36 — Case C-137/92 P Commission v BASF and Others [1994] 239/78, 27/79, 28/79 and '15/79 Dmnortier ľreres ami ECR I-2555, paragraph 67. Others v Council [1979] ECR 3091, paragraph 21.

I - 7559

OPINION O F MRS STIX-HACKL — CASE C-472/00 P

62. In accordance with the case-law of the Court of Justice, conduct is not causal if the damage would have arisen even in the absence of unlawful conduct. 41 That 60. However, even if it is concluded that means that the Commission's handling of each of the two sets of Commission con- the report is not causal if, even in the duct, considered individually, could have absence of that conduct, Fresh Marine caused the damage, it must, in accordance would have suspended exports and thus with the case-law of the Court of Justice, be suffered a loss in profits. The fact that considered whether the chain of causation exports were suspended as a result of the was interrupted by the second cause. 40 entry into force of the regulation, that is to say irrespective of the administrative error, shows that, in the present case, the admin- 38 — With respect to a similar set of facts, see Case T-20/94 istrative error cannot have been causal Hartmann v Council and Commission [1997] ECR 11-595, paragraph 108. 39 — Joined Cases 67/75 to 85/75 Lesieur v Commission [1976] ECR 3 9 1 , paragraphs 22 and 2 3 . 41 — J o i n e d Cases 29/63, 31/63, 36/63, 39/63 to 47/63, 50/63 40 — Toth, A.G., 'The Concepts of Damage and Causality as and 51/63 Laminoirs de la Providence and Others v High Elements of Non-contractual liability' in Heukels, Ton/ Authority [1965] ECR 911 and Joined Cases 5/66, 7/66, McDonnell, Alison, The Action for Damages in Commu- 13/66 to 24/66 Kampffmeyer and Others v Commission nity Law, 1997, p. 179 (193). [1967] ECR 245.

I - 7560

COMMISSION v FRESH MARINE

64. On a close examination, it must be held that, contrary to the view of the Court of First Instance, it was not the Commission's unlawful conduct with respect to the report which led to the damage suffered but, rather, the adoption of the provisional duties. 42 67. In support of the second ground of appeal, the Commission argues that it is apparent from the wording of Article 8( 10) of the Basic Regulation that, when impos- ing provisional measures, the Commission has a broad discretion in determining the circumstances leading it to conclude that an undertaking has been breached. By finding, 65. The first ground of appeal is therefore in paragraph 57, that only very limited or, well founded. indeed, no discretion is conferred on the Commission, the Court of First Instance disregarded its own case-law. It was incon- 42 — With respect to a similar situation, sec the Opinion of sistent with that case-law to regard the Advocate General Tesauro in Case 121/86 Epicbeiriscon Mclaileftikon Vìonuchanikon kai Naftiliakon and Others administrative conduct as the source of v Council [1989] ECR 3919, paragraph 2 1 . liability.

I - 7561

OPINION OF MRS STIX-HACKL — CASE C-472/00 P

68. Even if the damage was caused by the effect on the Commission's obligation to administrative conduct, liability would still comply with the Basic Regulation. Thirdly, depend on the question of the Commis- the cases cited by the Commission are sion's discretion. In the present case, only a irrelevant. sufficiently serious infringement could give rise to liability.

2. Analysis

I - 7562

COMMISSION v FRESH MARINE

or not 'the institution in question has only ing injury, 47 the determination of the type considerably reduced, or even no, discre­ of duty 48 and the establishment of the tion'. If so, 'the mere infringement of period of application of definitive anti­ Community law may be sufficient to estab­ dumping duties. 49 lish the existence of a sufficiently serious breach'. 44

77. Not even the judgment in Miwon, 50 which was frequently referred to in the present proceedings, establishes that the Community institutions generally have a broad discretion. Indeed, such discretion is established only in respect of the following: whether the relevant economic sector of the 75. The Court of Justice has not yet had to Community has suffered significant preju­ address the question whether the Commis­ dice and whether that damage was caused sion's discretion is considerably reduced by dumped exports and whether imports under Article 8(10) of the Basic Regulation, from other countries contributed to the which is the relevant provision here. It is prejudice suffered by that economic sector therefore appropriate, first of all, to con­ of the Community. sider the case-law of both the Court of Justice and the Court of First Instance as regards discretion in anti-dumping law.

OPINION OF MRS STIX-HACKL — CASE C-472/00 P

79. In any event, there is no case-law have been inserted into the provision appli- relevant to Article 8(10) of the Basic cable to the present case. The Commis- Regulation, which is the applicable provi- sion's discretion with respect to the con- sion in the present case. However, even if it dition for the imposition of provisional should be found that that provision confers duties has thus clearly been limited. discretion on the Commission, that does not necessarily mean that the strict con- dition for liability will apply, as it did under the traditional case-law. The less stringent condition of a 'mere infringement of Com- munity law' requires only 'considerably reduced discretion'. 81. In the present case, it must also be taken into consideration that, according to the Court of First Instance, the Commission did not exercise the required diligence in relation to the information available to it. It should not have imposed duties on the basis of the information available to it but, rather, improved that information. In accordance with the case-law of both the Court of Justice 53 and the Court of First Instance, 54 the Commission is especially obliged to carry out investigations in anti- dumping cases.

C — The third ground of appeal: Conduct 86. The Court of First Instance committed of the Commission in connection with the a further error in law by not considering October 1997 report the conditions in Article 8(10) of the Basic Regulation. The fact that the Commission accepts an undertaking does not mean that it must blindly trust the exporter's state- ments. Moreover, Article 8(10) does not grant the exporter a right to be heard. 84. By the third ground of appeal, the Commission submits that the Court of First Instance erred in law to the extent that it held that the October 1997 report prima facie justified the conclusion that Fresh Marine had complied with its undertaking and therefore concluded that the Commis- sion's reaction in amending the report was 87. Furthermore, the Court of First disproportionate and that the Commission Instance should have determined which committed an error which an adminis- party was to bear the burden of proof as trative authority exercising ordinary care to compliance with the undertaking. It was and diligence would not have committed. not for the Commission to prove that the undertaking was breached but for the exporter to prove that it was complied with.

1. Arguments of the parties

90. The Court of First Instance was right to 2. Analysis conclude that the Commission did not exercise the necessary diligence when assessing the final entries and therefore did not have the information required by Article 8(10) of the Basic Regulation. 94. Given the view taken here that the adoption of provisional duties and not the Commission's administrative conduct, that is its handling of the October 1997 report, was the causal event, it is unnecessary to consider the Commission's third ground of 91. Even if it were correct that the final appeal, which concerns the Court of First entries could not be regarded as showing Instance's assessment of its administrative that Fresh Marine had complied with its conduct. Thus, the question raised by Fresh undertaking, the fact remained that the Marine as to the admissibility of the Commission amended the undertaking Commission's submission also need not be without informing Fresh Marine and giving addressed. it the opportunity to be heard.

100. Moreover, the Commission did not 97. That applies to the conclusion reached reach its decision 'on the basis of the best in connection with the assessment of the information available' within the meaning second ground of appeal. There it was of Article 8(10) of the Basic Regulation. found sufficient for the establishment of The very doubts with regard to the October liability that the Commission committed a 1997 report, admitted to by the Commis- mere infringement of Community law sion, together with the possibility, con- when adopting Regulation No 2529/97 ceded by the Commission at the hearing, of imposing provisional duties. 57 clarifying those doubtful points by contact- ing Fresh Marine, show that the report alone cannot be regarded as the best information available.

98. As is shown by the Court of First Instance's findings in respect of the admin- istrative error made by the Commission, which are — in that regard — free of any error in law, in particular paragraph 91 of the contested judgment, the October 1997 report justified the conclusion that Fresh Marine had complied with its undertaking.

101. By imposing provisional duties despite 99. However, Article 8(10) of the Basic the fact that not all of the requirements laid Regulation makes the imposition of pro- down in Article 8(10) of the Basic Regu- lation were satisfied, the Commission erred in law. That constitutes a 'mere infringe- 56 —Case C-30/91 P Lestelle v Commission [1992] ECR ment', which is one of the conditions for I-3755, paragraph 28, Case C-36/92 P SEP v Commission non-contractual liability of the Community (19941 ECR I-1911, paragraph 33, and Case C-294/95 P Ojha v Commission [1996] ECR I-5863, paragraph 52. in the case of considerably reduced dis- 57 — See Case C-352/98 P (cited at footnote 14), paragraph 45. cretion.

103. The Commission submits that the Court of First Instance failed to have regard to the burden of proof laid down in 106. According to Fresh Marine, the Com- Article 8(10) of the Basic Regulation since mission's fourth ground of appeal is con- any exporter must expect the imposition of cerned solely with points of fact and is duties if the report suggests that it has therefore inadmissible. Alternatively, it breached its undertaking. The Commission submits that the Commission must explain also had 'better' information showing that why it considered it necessary to impose the undertaking had been breached. provisional duties if it regarded it as obvious that they would not be collected definitively. Secondly, it overlooks the fact that collection of duties is a matter for the Council. Thirdly, the Commission also disregards the fact that, even if Fresh Marine had explained the negative entries, 104. Moreover, the Commission criticises the Council would nevertheless have col- the Court of First Instance's finding that, lected the duties. The Commission also I - 7568

COMMISSION v FRESH MARINE

declined to give any assurance that the Marine that the duties would be defini- duties would not be collected. tively collected if it continued to export to the Community after the imposition of those duties. Thus, they essentially chal- lenge the Court of First Instance's assess- ment of the facts and the ground of appeal is therefore inadmissible in that respect. 2. Analysis

(b) Merits

(a) Admissibility

110. First of all, the Commission's argu- ment as to the burden of proof under Article 8(10) of the Basic Regulation must- 107. First of all, it is necessary to consider be considered. That provision governs the Fresh Marine's objection that the fourth conditions under which a provisional duty ground of appeal concerns points of fact may be imposed. Any matters of proof in and is therefore inadmissible. connection with Article 8(10) of the Basic Regulation can relate only to those con- ditions.

113. In holding in paragraph 124 of its judgment that it would have been unreas- 1. Arguments of the parties onable to expect Fresh Marine to continue exports to the Community, the Court of First Instance applied a criterion, namely reasonableness, which, in view of the legal systems of the Member States, must be regarded as admissible. Accordingly, the Court of First Instance, in any event, did 117. The Commission submits that the not err in law in that regard. Court of First Instance did not offer it the opportunity to explain why, for no obvious reason, it delayed until 25 March 1998 before giving Fresh Marine formal legal assurance even though it had become con- vinced at least from 30 January 1998 that 114. However, an appraisal of reasonable- Fresh Marine had complied with its under- ness for the person suffering the damage, taking. The Court of First Instance erred in that is to say, essentially, of the economic law in concluding that the Commission was risk, is an assessment of facts which falls fully liable for the loss of profit suffered outside the jurisdiction of the Court of from the end of January 1998. Justice in appeal proceedings. The Court of Justice cannot therefore examine whether the Court of First Instance erred in assess- ing the economically relevant facts, in particular with respect to the bank guaran- tee. 118. The Commission disputes that it mis- interpreted the findings of the Court of First Instance and submits that it could not, by simple letter, give any formal legal assurance that the provisional duties would 115. The fourth ground of appeal must not be collected and the undertaking rein- therefore be rejected. stated.

120. First of all, it should be noted that, in its appeal, under the heading 'Rights of the 123. In arguing that the Court of First Defence', the Commission addresses a Instance did not give it the opportunity to series of matters which really concern the submit its views on the questions of liability interpretation of the Basic Regulation, in it refers to, the Commission fails to con- particular the assessment of Regulation sider the nature of actions for damages. In No 651/98 and the letter of 2 February such proceedings, the party causing the 1998 and — generally — the legal signifi- damage must at all times reckon with a cance of mere letters. division of responsibility for the damage. The Commission was aware of the circum- stances which led the Court of First Instance to divide the loss by reference to periods and in accordance with a certain 121. Although the question whether the percentage. It therefore had the opportun- legal assurance can be provided only by ity to comment on the circumstances rel- way of a regulation is, in principle, one evant to that decision. which can be considered in appeal proceed- ings, the Commission complains — at least in its appeal — of the lack of a legal hearing in respect of liability for a certain period, in particular the delay 'for no obvious reason' established by the Court 124. However, the rights of the defence do of First Instance. Considered from that not require the Court of First Instance to

I - 7571

OPINION OF MRS STIX-HACKL — CASE C-472/00 P

129. Accordingly, the fifth ground of appeal is unfounded and, therefore, the appeal must be dismissed in its entirety. 127. The requirements of a fair trial com- prise, above all, contradictory proceedings 59 — See e.g. Eur. Court HR, Vermeulen v Belgium judgment of 20 February 1996, Reports of judgments and Decisions 1996-I, § 33, Nideröst-Huber v Switzerland judgment of 18 February 1997, Reports of Judgments and Decisions 58 — See, inter alia, Eur. Court HR, Schenk v Switzerland 1997-1, § 23, and Morel v France judgment of 6 June 2000, judgment of 12 July 1988, Series A no. 140, §§ 45 - 46, Reports of Judgments and Decisions 2000-VI, § 27. and Mantovanelli v France judgment of 18 March 1977, 60 — See e.g. Schenk v Switzerland judgment of 12 July 1988 Reports of Judgments and Decisions 1997-11, § 34. (cited at footnote 58), § 46.

I - 7572

COMMISSION v FRESH MARINE

VIII — The cross-appeal and the claim for inapplicable since the Commission did not interest reject the October 1997 report. In that regard, the cross-appeal is inadmissible since no reference was made to that provi- sion in either the proceedings before the Court of First Instance or the contested judgment. 1. Arguments of the parties

132. The Commission submits that 135. With respect to the Commission's Article 18(4) of the Basic Regulation is objection that Fresh Marine's argument

I - 7573

OPINION OF MRS STIX-HACKL — CASE C-472/00 P

relating to Article 18(4) of the Basic the Court of First Instance's finding that no Regulation is inadmissible, it should be explanations were appended to the October noted that the fact that the Court of First 1997 report. Instance did not cite that provision in the contested judgment does not result in inadmissibility. By that argument, Fresh Marine is clearly complaining of precisely that failure by the Court of First Instance to apply the provision and is thus alleging an 139. The Court of First Instance's con- error in law. clusion, based on the finding that both parties were 'equally at fault', that respon- sibility for the damage should be shared is only consistent with the principle recog- nised in the case-law of the Court of Justice that responsibility is to be shared in the event of contributory fault. In accordance (b) Merits with that principle, the Community can be obliged to compensate the damage suffered by an enterprise but the extent of liability of, for example, the Commission can be limited as a result of the conduct of the enterprise suffering the damage. If the party 136. On the other hand, the Commission is suffering damage contributed to that dam- right to claim that Article 18(4) of the Basic age, which the Court of First Instance Regulation is inapplicable to the present rightly found in the present case, the case because that provision is concerned Community judicature — in this case the with other aspects of anti-dumping pro- Court of justice — can order that both ceedings. parties, namely the Commission and Fresh Marine, should each bear a certain propor- tion of the damage. 61

146. Whilst a loss caused by the fall in the value of money can, in accordance with the case-law of the Court of Justice, 6 5 be 3. Analysis of the claim for interest compensated, Fresh Marine's application contains no arguments in that regard.

143. Fresh Marine also claims that the Commission should be ordered to pay interest on the sum of NOK 577 000 and 147. It follows that the cross-appeal and the costs of the proceedings at an annual the claim for interest must be dismissed. rate of 8% from the date of the contested judgment. 62 —Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 32, and judgment of 19 May 1992 in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061, paragraph 35. 63 —Judgment of 27 January 2000 in Joined Cases C-104/89 anď C-37/90 Mulder and Others v Commission [2000] ECR I-203, paragraph 216. 64 — Case C-282/98 P Enso Española v Commission [2000] 144. A claim for payment of interest, ECR I-9817, paragraph 62. 65 _ Joined Cases C-104/89 and C-37/90 (cited at footnote 63), which likewise concerns the non-contrac­ paragraph 351.

I - 7575

OPINION OF MRS STIX-HACKL — CASE C-472/00 P

IX — Costs is to be ordered to pay the costs, if they have been asked for in the successful party's pleadings. Since the Commission has been unsuccessful in all its pleas and 148. Under Article 69(2) of the Rules of Fresh Marine has been unsuccessful in its Procedure, which applies to appeals by cross-appeal, both parties must be ordered virtue of Article 118, the unsuccessful party to pay their own costs.