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44. |
It should be
noted that according to established case-law, in order for the
Community to incur non-contractual liability, the applicant must
prove the unlawfulness of the alleged conduct of the Community
institution concerned, actual damage and the existence of a causal
link between that conduct and the alleged damage (Case 26/81
Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph
16,and Case T-113/96 Dubois et Fils v
Council and Commission [1998] ECR II-125, paragraph 54).
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45. |
In Case
C-352/98 P Bergaderm and Others v Commission [2000] ECR
I-5291, paragraphs 41 and 42, the Court held that the right to
reparation requires that the rule of law infringed be intended to
confer rights on individuals and that the breach of such a rule be
sufficiently serious.
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46. |
As regards the
first condition, it should be noted that it is clear from Community
case-law that the WTO Agreement and its annexes are not intended to
confer rights on individuals which they could rely on in court.
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47. |
In this
connection, the Court held in Portugal v Council
(paragraph 36) that while it is true that the WTO Agreement and its
annexes differ significantly from the provisions of GATT 1947 they
nevertheless accord considerable importance to negotiation between
the parties.
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48. |
As regards,
more particularly, the application of the agreements contained in
the annexes to the WTO Agreement in the Community legal order, the
Court of Justice held in Portugal v Council, paragraph
42, that, according to its preamble, the WTO Agreement, including
the annexes, is still founded, like GATT 1947, on the principle of
negotiations with a view to 'entering into reciprocal and mutually
advantageous arrangements and is thus distinguished, from the
viewpoint of the Community, from the agreements concluded between
the Community and non-member countries which introduce a certain
imbalance of obligations, or create special relations of integration
with the Community.
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49. |
The Court went
on to observe that it is common ground that some of the contracting
parties, which are among the most important commercial partners of
the Community, have concluded from the subject-matter and purpose of
the agreements contained in the annexes to the WTO Agreement that
they are not among the rules applicable by their judicial organs
when reviewing the legality of their rules of domestic law. The
Court concluded that the lack of reciprocity in that regard on the
part of the Community's trading partners, in relation to the
agreements contained in the annexes to the WTO Agreement, which are
based on 'reciprocal and mutually advantageous arrangements and
which must ipso facto be distinguished from agreements concluded by
the Community, may lead to disuniform application of the WTO rules.
To accept that the role of ensuring that Community law complies with
those rules devolves directly on the Community judicature would
deprive the legislative or executive organs of the Community of the
scope for manoeuvre enjoyed by their counterparts in the Community's
trading partners (see Portugal v Council, paragraphs
43, 45 and 46).
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50. |
The Court of
Justice concluded that, having regard to their nature and structure,
the agreements in the annexes to the WTO Agreement are not in
principle amongthe rules in the light of which the Court is to
review the legality of measures adopted by the Community
institutions (see Portugal v Council, paragraph 47).
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|
51. |
It is clear
from that judgment that as the WTO rules are not in principle
intended to confer rights on individuals, the Community cannot incur
non-contractual liability as a result of infringement of them.
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52. |
In its
observations on the conclusions to be inferred from the judgment in
Portugal v Council, the applicant acknowledged that
the WTO provisions had no general direct effect within the Community
legal system. However, it argued that its action was founded on a
new category of misuse of powers, in so far as the Commission had
adopted a regulation infringing a decision declaring the Community
system incompatible with the WTO rules and its undertaking to
rectify the infringements thus established (see paragraphs 34 to 36
above), in breach of the principle nemini licet venire contra
factum proprium.
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53. |
That argument
cannot be accepted. First, it is settled case-law that an act of a
Community institution is vitiated by misuse of powers only if it was
adopted with the exclusive or main purpose of achieving an end other
than that stated (Case C-285/94 Italy v Commission
[1997] ECR I-3519, paragraph 52) and that a finding of misuse of
powers may be made only on the basis of objective, relevant and
consistent evidence (Joined Cases T-551/93, T-231/94, T-232/94,
T-233/94 and T-234/94 Industrias Pesqueras Campos and Others
v Commission [1996] ECR II-247, paragraph 168).
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|
54. |
In the present
case, the applicant does not establish, or even allege, that the
Commission adopted Regulation No 2362/98 or some of its provisions
with the purpose of achieving an end other than that stated, which
was to adopt all the provisions needed in order to bring into effect
the arrangements for importing bananas into the Community introduced
by Regulation No 404/93, as amended by Regulation No 1637/98.
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55. |
Similarly, the
applicant's argument that this is a new category of misuse of powers
must also be rejected.
|
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56. |
To accept the
applicant's line of argument would be to misinterpret the very
definition of misuse of powers, which involves review by the
Community judicature of the purpose of a measure and not its
content.
|
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57. |
Moreover, the
applicant's argument that the Community was guilty of misuse of
powers in adopting a regulation containing infringements of the WTO
rules, or by continuing infringements already established, when it
had undertaken to comply with those rules, must likewise be
rejected.
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58. |
In that regard,
it is only where the Community intends to implement a particular
obligation assumed in the context of the WTO, or where the Community
measurerefers expressly to the precise provisions of the agreements
contained in the annexes to the WTO Agreement, that it is for the
Court of Justice and the Court of First Instance to review the
legality of the Community measure in question in the light of the
WTO rules (see Portugal v Council, paragraph 49).
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59. |
Neither the
reports of the WTO Panel of 22 May 1997 nor the report of the WTO
Standing Appellate Body of 9 September 1997 which was adopted by the
Dispute Settlement Body on 25 September 1997 included any special
obligations which the Commission 'intended to implement, within the
meaning of the case-law, in Regulation No 2362/98 (see with regard
to the 1947 GATT, Case C-69/89 Nakajima v Council [1991] ECR I-2069,
paragraph 31). The regulation does not make express reference either
to any specific obligations arising out of the reports of WTO
bodies, or to specific provisions of the agreements contained in the
annexes to the WTO Agreement.
|
|
60. |
The applicant
cannot therefore base its action on an alleged infringement of
certain agreements contained in Annex 1 to the WTO Agreement in this
case or on an alleged misuse of powers. |
