17 By its
first plea, raised for the first time at the stage of the reply
before the Court of Justice, the appellant submits that the WTO
decision establishes once and for all that essential parts of the
common organisation of the market in bananas (hereinafter `common
organisation of the market') are incompatible with WTO law, placing
beyond doubt the illegality of the common organisation of the market
under Community law.
18 The appellant states that it became aware of the illegality of
Regulation No 404/93 on publication of the WTO decision, which was
six months after the lodging of the appeal on 10 March 1997. This
decision, it contends, is therefore a new matter for the purposes of
Article 42(2) of the Rules of Procedure of the Court of Justice,
applicable to appeals under Article 118 of those Rules. Atlanta
argues on this point that the Court of Justice, when ruling on an
appeal, does not make a finding on the facts, but undertakes a legal
review of the contested judgment. It claims, as a result, that the
Court of Justice should quash the contested judgment and refer the
case back to the Court of First Instance.
19 There is in this regard an inescapable and direct link between
the WTO decision and the plea of breach of the provisions of GATT,
raised by the appellant before the Court of First Instance and not
repeated by it in its pleas on appeal.
20 Such a decision could only be taken into consideration if the
Court of Justice had found GATT to have direct effect in the context
of a plea alleging the invalidity of the common organisation of the
market.
21 As correctly pointed out by the Commission, the appellant could
have maintained its plea and adduced in particular the dispute
settlement mechanism set up within the WTO in 1995 in support of its
argument that the provisions of GATT were of direct effect.
22 In these circumstances, to admit the plea based on the WTO
decision would be tantamount to allowing the appellant to challenge
for the first time at the stage of the reply the dismissal by the
Court of First Instance of a plea which it had raised before that
court, whereas nothing prevented it from submitting such a plea at
the time of its application to the Court of Justice.
23 The first plea must therefore be dismissed as inadmissible.
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