C-122/01

4. Originally Article 18(1) of Regulation No 404/93 provided for a tariff quota of 2 million tonnes (net weight) to be opened each year for imports of third-country bananas from non-ACP States6 and non- 3. Council Regulation (EEC) No 404/93 of traditional imports of bananas from ACP 13 February 1993 on the common organi- States. 7 Under that quota, imports of third-country bananas were subject to a levy of ECU 100 per tonne and non-tradi- 1 — Original language: French. 2 — [2001] ECR II-465, 'the judgment under appeal'. tional ACP bananas to a zero duty. 3 — Commission Regulation of 1 March 1995 on additional rules for the application of Council Regulation (EEC) No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending 5 — OJ 1993 L 47, p. 1. Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13). 6 — Hereinafter referred to as 'third-country bananas'. 4 — See judgment under appeal (paragraphs 1 to 26). 7 — Hereinafter referred to as 'non-traditionnl ACP bananas'.

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OPINION OF MR LÉGER — CASE C-122/01 P

5. Article 19(1) of Regulation No 404/93 8. Point 6 of the Framework Agreement subdivided the tariff quota opened as provides that those countries 'may deliver follows: 66.5% to the category of operators special export certificates for up to 70% of who had marketed third-country and/or their quota' and that those certificates non-traditional ACP bananas (category A), constitute 'a prerequisite for the issuance, 30% to the category of operators who had by the Community, of certificates for the marketed Community and/or traditional importation of bananas from said countries ACP bananas (category B) and 3.5% to by Category A and Category C operators'. the category of operators established in the In addition, point 7 of the Framework Community who had started marketing Agreement fixes the in-quota customs duty bananas other than Community and/or at ECU 75 per tonne. traditional ACP bananas from 1992 (cat- egory C).

7. In March 1994 the European Commu- nity reached an agreement, known as the Framework Agreement on Bananas, 8with several Latin American countries, namely the Republics of Colombia, Costa Rica, Nicaragua and Venezuela. That agreement set the basic overall tariff quota at 10. On 10 March 1998 the Court of Justice 2 100 000 tonnes for 1994 and at 2 200 000 partially annulled Decision 94/800 on the tonnes for 1995 and subsequent years and grounds that by exempting Category B laid down the percentages of the quota operators from the export-licence system allocated to Colombia, Costa Rica, Nica- ragua and Venezuela. 9 — Council Decision 94/800/EC of 22 December 1994 concern- ing the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations 8 — Hereinafter referred to as 'the Framework Agreement'. (1986-1994) (OJ 1994 L 336, p. 1).

I - 4264

T. PORT v COMMISSION

that decision infringed the principle of 13. The appellant claimed that the Court of n o n - d i s c r i m i n a t i o n laid down in First Instance should order the Community Article 40(3) of the EC Treaty (now, after to pay it, on the one hand, the sum of DEM amendment, Article 34(2) EC). 10 The 828 337.10 in respect of the price of the Court of Justice also declared Regulation export licences which it was required to No 478/95 invalid on the same grounds. 11 purchase and, on the other hand, the sum of DEM 126 356.80 in respect of the cost of borrowing money in order to purchase those licences.

43 In the present case, the conditions which the latter declares that "from relating to actual damage and to a 1996 to 1998, [it] disbursed DEM causal link may appropriately be con- 828 337.10 on purchasing export sidered together. licences for bananas from Costa Rica". It is clear from its pleadings and from what it said at the hearing that in the applicant's view the expenditure men- tioned in that certified statement in itself constitutes the loss it has suffered and that there is no point in con- sidering what effect that expenditure actually had on the profitability of the corresponding commercial trans- actions. The applicant submits that it is not, therefore, incumbent on it to supply any further particulars or evi- dence.

55 According to settled case-law, it is for the party seeking to establish the Com- munity's liability to adduce conclusive proof as to the existence or extent of the damage he alleges.... 58 That approach cannot be accepted, for several reasons.

56 In this instance, the damage alleged has two components. First, it consists of 59 In the first place, there is nothing in the the costs of the applicant's purchase of certified statement referred to which licences to export bananas from Costa makes it possible to determine whether Rica. Second, it consists of the bank the sum really corresponds to the cost interest paid on the sums drawn on a of purchasing export licences. line of credit made available to the applicant by its bank.

60 In the second place, even on the assumption that that sum is unarguably genuine, it has by no means been 57 With regard to the first head of dam- established that the applicant itself age, the applicant has produced a actually used all the export licences certified statement of its auditor in corresponding to that sum in order to

62 The applicant ought to have taken all the greater care to communicate infor- mation on those various points because, both in its defence and in its 61 The two certified statements of the rejoinder, the Commission expressly auditor, annexed to the reply, are not drew the applicant's attention to the in this regard conclusive. They simply fact that such information was essential state that in 1996, 1997 and 1998 if the existence and extent of the respectively the applicant paid DEM damage alleged were to be established. 767 225.38, DEM 489 029.36 and Notwithstanding those observations, DEM 1 419.11 by way of "import the applicant — as it acknowledged duties on imports of bananas from at the hearing in response to a question Costa Rica". In the absence of any put by the Court of First Instance — information regarding the quantities of has deliberately chosen not to supply bananas to which those total amounts the information. relate, or the quantities to which the abovementioned amount of DEM 828 337.10 relates, or the parameters used by the auditor in arriving at those sums, it cannot be established with the requisite certainty that the quantities of bananas imported from Costa Rica into the Community by the applicant between 1996 and 1998 correspond to 63 In the third place, even if the applicant the quantities of bananas in respect of did use on its own account all the which it purchased export licences in export licences it had acquired, its that country. In addition, and in any method of determining loss, which is event, the possibility remains that some to claim that the loss is equal to the of the import duty paid by the appli- expense incurred, cannot be accepted.

65 The applicant has not put forward anything to suggest that it was not possible to pass on the cost, nor has it even denied having done so in this case. It has merely objected that that argu- ment was raised by the Commission for the first time at the hearing and cannot therefore be taken into consideration by the Court. That objection cannot be upheld, since the Commission expressly pointed out in its pleadings 67 It follows that the mere fact, assuming the need for information concerning it to have been proved, that an operator the cost factors linked to the export has borne additional costs connected licence regime and concerning the cir- with its business dealings does not cumstances in which the bananas were necessarily imply that it suffered a imported. Since the applicant has delib- corresponding loss. In this instance, erately chosen to adopt an especially by deliberately confining itself to bas- restrictive approach with regard to the ing its application on the single fact furnishing of evidence, it is not reason- that it had incurred certain costs, the able for it to complain that the Com- applicant has therefore not adduced mission expressed some of its criticisms sufficient proof of having actually in greater detail at the hearing. sustained loss.'

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T. PORT v COMMISSION

15. In paragraphs 68 to 74 of the judgment 19. In support of its appeal, the appellant- under appeal the Court of First Instance puts forward five pleas in law: considered the appellant's application as regards the second component of the loss complained of (namely the cost of borrow- ing money to purchase the export licences concerned). It held that the evidence adduced by the appellant in that connection was not conclusive. — error of law in the definition of 'loss';

they both relate to the reasoning contained the loss. In the present case the increase in in paragraphs 63 to 67 of the judgment quota and the reduction in customs duties under appeal. do not constitute a breach of the law.

23. It should be pointed out that, according to established case-law, 14 the Court of Justice will reject from the outset com- plaints directed against grounds of a judg- A — The first two pleas ment of the Court of First Instance which are subsidiary or included only for the sake of completeness. The Court of Justice considers that where the operative part of the judgment of the Court of First Instance is based on other grounds, put forward as 21. Under its first plea, 12 the appellant the main grounds, such complaints cannot maintains that the Court of First Instance lead to the judgment under appeal being set committed an error of law holding that the aside and are therefore inoperative. appellant could have passed on the price of the export licences in the sale price of the bananas. In the appellant's view the ques- tion of passing on the loss is irrelevant as regards determining the extent of the loss. The Court of First Instance should have 24. In the present case the first two pleas held that the loss corresponded to the price seek to challenge grounds which are sub- of the contested export licences. sidiary in relation to those set out in paragraphs 59 to 62 of the judgment under appeal.

regard to the first component of the alleged 28. It is clear from that information that loss, namely the sum of DEM 828 337.10. the grounds relating to the definition of It put forward two sets of considerations in 'loss' (paragraphs 63 to 67 of the judgment that regard. under appeal) are subsidiary in relation to the grounds relating to the evidence adduced by the appellant (paragraphs 59 to 62 of the judgment under appeal). The Court of First Instance made that assess- ment on the basis of the view, which it expressly rejected, that the appellant had adequately established that its loss was 26. The first set of considerations relates to genuine. the value of the evidence adduced by the appellant. The Court of First Instance held in paragraphs 59 to 62 that the appellant had not proved that its loss was genuine on the grounds that (1) the certified statements made by its auditor were not conclusive 29. In those circumstances, I think that the and (2) it was not established that the first two pleas are of no consequence. They appellant had used the export licences on cannot entail the judgment under appeal its own account. being set aside because, for this to be done, the appellant must in any event show that the grounds relating to its evidence (para- graphs 59 to 62 of the judgment under appeal) are incorrect.

that in paragraph 59 of the judgment the '[i]n the absence of any information regard- Court discounted the first certified state- ing the quantities of bananas to which [the] ment from the appellant's auditor without total amounts [of DEM 767 225.38, DEM explaining how that evidence was insuffi- 489 029.36 and DEM 1 419.11] relate, or cient to establish that the appellant's loss the quantities to which the abovementioned was genuine. amount of DEM 828 337.10 relates, or the parameters used by the auditor in arriving at those sums, it cannot be established with the requisite certainty that the quantities of bananas imported from Costa Rica into the Community by the applicant between 1996 32. It should be pointed out that, in order and 1998 correspond to the quantities of to prove its loss, the appellant had pro- bananas in respect of which it purchased duced three certified statements before the export licences in that country'. 20 Court of First Instance. The first certified statement appeared as an annex to the application and read 'from 1996 to 1998 [the appellant had] disbursed DEM 828 337.10 on purchasing export licences for bananas from Costa Rica'. 18 The two other certified statements appeared as 35. In paragraph 62 of the judgment under annexes to the reply and stated that in appeal it added that '[t]he applicant ought 1996, 1997 and 1998 respectively the to have taken all the greater care to appellant paid DEM 767 225.38, DEM communicate information on those various 489 029.36 and DEM 1 419.11 by way of points because... the Commission expressly 'import duties on imports of bananas from drew the applicant's attention to the fact Costa Rica'. 19 that such information was essential if the existence and extent of the damage alleged were to be established. Notwithstanding those observations, the applicant — as it acknowledged at the hearing in response to a question put by the Court of First 33. Contrary to what the appellant con- Instance — has deliberately chosen not to tends, the Court of First Instance did give supply the information'. the reasons why those three certified state- ments did not provide proof of the alleged loss.

37. Consequently, I consider that the Court of First Instance complied with the formal requirement to state its reasons. I therefore 40. It should be pointed out that it is settled consider that this Court should reject the case-law that the Court of Justice has no third plea. jurisdiction to find the facts or, as a rule, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general prin- ciples of law and the rules of procedure in C — The fourth plea relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached 38. The fourth plea 21 is directed against to the evidence produced to it. 22 That paragraph 60 of the judgment under appraisal does not therefore constitute, appeal. The appellant criticises the Court save where the clear sense of that evidence of First Instance for holding that it was by has been distorted, a point of law amenable no means established that the appellant to review by the Court of Justice. 23 itself actually used all the export licences corresponding to the sum certified by its auditor (DEM 828 337.10).

by the Court of First Instance of the 44. It should be pointed out that, according evidence produced by the appellant. The to settled case-law, the Community's non- appellant claims, contrary to what was held contractual liability is dependent on the by the Court of First Instance, that the coincidence of a series of conditions as certified statements produced at first regards the unlawfulness of the acts alleged instance contained all the evidence needed against the institutions, the fact of the in order to show that it did actually use the damage complained of and the existence contested licences. However, the appellant of a causal link between the conduct of the has neither established, nor even argued, institution concerned and the damage com- that the Court of First Instance distorted plained of. 25 It is also settled case-law that the clear sense of the evidence produced those conditions are cumulative so that if before it. one of them is not satisfied the Community cannot incur liability. 26

42. In those circumstances, the fourth plea is manifestly inadmissible.

45. In the present case we have already found that none of the four pleas seeking to establish the existence of the loss suffered by the appellant could be upheld.

D — The fifth plea