JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)
22 May 2007 (*)
(Non-contractual liability – Importation of methyl bromide into the European Union – Delay in setting up an Internet site for requesting and obtaining import licences and quotas – Articles 6 and 7 of Regulation (EC) No 2037/2000 – Damage resulting from loss of profit – Actual damage)
In Case T‑198/05,
Mebrom NV, established in Rieme-Ertvelde (Belgium), represented by C. Mereu and K. Van Maldegem, lawyers,
applicant,
v
Commission of the European Communities, represented by U. Wölker and X. Lewis, acting as Agents,
defendant,
ACTION for compensation for the damage allegedly suffered by the applicant as a result of the Commission’s failure to set up a system allowing the applicant to import methyl bromide for critical uses into the European Union in January and February 2005,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of J. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 28 November 2006,
gives the following
Judgment
Legal context
The Vienna Convention and the Montreal Protocol
1 By Council Decision 88/540/EEC of 14 October 1988 concerning the conclusion of the Vienna Convention for the protection of the ozone layer and the Montreal Protocol on substances that deplete the ozone layer (OJ 1988 L 297, p. 8), the European Community became a party to the Vienna Convention for the protection of the ozone layer (‘the Vienna Convention’) and the Montreal Protocol on substances that deplete the ozone layer (‘the Montreal Protocol’).
2 Methyl bromide falls within the scope of the Montreal Protocol.
3 In 1997, the parties to the Montreal Protocol agreed to reduce in stages the production and importation of methyl bromide in developed countries until 31 December 2004 and, from 1 January 2005, to prohibit the production and importation of methyl bromide in developed countries other than for ‘critical uses’.
4 Under Decision IX/6 of the parties to the Montreal Protocol (‘Decision IX/6’), a use of methyl bromide is considered ‘critical’ only if the nominating party in respect of exemption of that use determines, first, that the lack of availability of methyl bromide for the use would result in a significant market disruption and, second, that there are no technically and economically feasible alternatives or substitutes available to the user that are acceptable from the standpoint of the environment and health and are suitable to the crops and circumstances referred to in the nomination.
5 Decision IX/6 also requires that the production and consumption of methyl bromide for critical use should be permitted only if:
– all technically and economically feasible steps have been taken to mimimise the critical use and any associated emission of methyl bromide;
– methyl bromide is not available in sufficient quantity and quality from existing stocks of banked or recycled methyl bromide; and
– it is demonstrated that an appropriate effort is being made to evaluate, market and secure appropriate national regulatory approval of alternatives and substitutes.
Regulation (EC) No 2037/2000
6 The obligations arising under the Vienna Convention and the Montreal Protocol are currently implemented in the Community legal order by Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer (OJ 2000 L 244, p. 1, ‘the Regulation’). That measure sets out the rules applicable to the production, importation, exportation and use of certain substances that deplete the ozone layer, including methyl bromide.
7 Article 3(2)(i)(d) of the Regulation prohibits the production of methyl bromide after 31 December 2004 other than, inter alia, for critical uses in accordance with Article 3(2)(ii) and the criteria laid down in Decision IX/6.
8 Article 3(2)(ii) of the Regulation provides:
‘In the light of the proposals made by Member States, the Commission shall … apply the criteria set out in Decision IX/6 of the Parties, together with any other relevant criteria agreed by the Parties, in order to determine every year any critical uses for which the production, importation and use of methyl bromide may be permitted in the Community after 31 December 2004, the quantities and uses to be permitted and those users who may take advantage of the critical exemption. Such production and importation shall be allowed only if no adequate alternatives or recycled or reclaimed methyl bromide [are] available from any of the Parties …’
9 Article 3(4) of the Regulation provides that the Commission is to issue licences to users identified in accordance with the second subparagraph of Article 3(1) and Article 3(2)(ii) and is to notify them of the use for which they have authorisation and the substances and quantities thereof that they are authorised to use.
10 In addition, Article 4(2)(i)(a) to (c) of the Regulation provides that each producer or importer is to ensure that, from 1 January 1999 to 31 December 2004, it does not place on the market or use for its own account methyl bromide in quantities exceeding a certain percentage of the level of methyl bromide which it placed on the market or used for its own account in 1991.
11 Under Article 4(2)(i)(d) of the Regulation, and subject to Article 4(4) and (5), each producer and importer is to ensure that it does not place any methyl bromide on the market or use any for its own account after 31 December 2004.
12 Pursuant to Article 4(4) of the Regulation, that prohibition does not apply, inter alia, to the placing on the market or use of controlled substances where they are used to meet the licensed requests for critical uses of those users identified in accordance with Article 3(2) of the Regulation.
13 Article 6(1) of the Regulation provides as follows:
‘The release for free circulation in the Community or inward processing of controlled substances shall be subject to the presentation of an import licence. Such licences shall be issued by the Commission after verification of compliance with Articles 6, 7, 8 and 13.’
14 Article 6(3) and (4) of the Regulation sets out the information which a request for an import licence must state and allows the Commission to require a certificate attesting the nature of the substance to be imported. Article 8 of the Regulation prohibits imports of controlled substances from States that are not party to the Montreal Protocol. Article 13 of the Regulation allows for derogations in certain circumstances, inter alia from the prohibition in Article 8 of the Regulation.
15 Article 7 of the Regulation is worded as follows:
‘The release for free circulation in the Community of controlled substances imported from third countries shall be subject to quantitative limits. Those limits shall be determined and quotas allocated to undertakings for the period 1 January to 31 December 1999 and for each 12-month period thereafter in accordance with the procedure referred to in Article 18(2). They shall be allocated only:
(a) for controlled substances of groups VI and VIII as referred to in Annex I;
(b) for controlled substances if they are used for essential or critical uses or for quarantine and preshipment applications;
…’
Facts of the dispute
16 The applicant is an undertaking which since 1996 has been importing methyl bromide into the European Union and reselling it to its European customers.
17 Methyl bromide is a pesticide which is applied by fumigation. It is used essentially in agriculture since it penetrates soil with ease and is effective against a wide range of harmful elements. Its rapid degradation prevents contamination of the food chain and groundwater. For those reasons, methyl bromide was one of the five most commonly used pesticides in the world. However, it has the disadvantage that it depletes the ozone layer.
18 In 2002 the Commission set up an Ozone Depleting Substances internet site (‘the ODS site’) enabling import licences for substances covered by the Regulation, including methyl bromide, to be applied for and issued on line. The system is administered by the Commission and is protected by passwords given to registered users.
19 From December 2003, the Commission worked on adapting the site in order to restrict the use of methyl bromide to users entitled to critical use of the substance after 1 January 2005. For this purpose, computer programmers had to modify the programme. The Commission expected the ODS site to be operational in October 2004, but the site modifications and associated tests were not completed until 14 February 2005.
20 Until 31 December 2004, eight importers were entitled to apply for import licences, on the basis of a quota calculated according to their market share in 1991. Each year, generally in September, they were required to submit to the Commission a request for an import quota for the following year, using a standard application form specifically designed for that purpose by the Commission. The import quotas were allocated on that basis by means of Commission decisions containing an exhaustive list of the names of the importers whose requests had been accepted and stating their individual quotas. Import quotas were allocated to the applicant from 1996 to 2004.
21 On 22 July 2004, the Commission published a notice to importers in the European Union in 2005 of controlled substances that deplete the ozone layer, regarding the Regulation (OJ 2004 C 187, p. 11, ‘the 2004 Notice’). Under point VIII of the 2004 Notice, undertakings with an import quota for 2004 were to make a declaration by completing and submitting the relevant forms on the ODS site.
22 Following publication of the 2004 Notice, on 30 August 2004 the applicant submitted to the Commission a declaration seeking, inter alia, a methyl‑bromide quota for critical uses for 2005. It requested the allocation of a quota of 4 500 000 kg, which represents 2 700 000 Ozone Depleting Potential (ODP) kg.
23 On 10 December 2004, the applicant received an e-mail, which was sent by the Commission to all users of the ODS site, informing it that ‘[t]he quota for 2005 [would] be available on [its] website … on 13 December 2004’. It stated that the ‘import decision’ was being prepared and would be notified to each importer as soon as it had been adopted. It also stated that applications for import licences needed for the beginning of 2005 could be submitted on the website from 13 December 2004 and should reach the Commission by 1 p.m. on 17 December 2004 so that they could be processed before the end of the year.
24 As the ODS site was not in operation on the specified date (13 December 2004), the applicant wrote to the Commission the next day. It informed the Commission that its customers needed methyl bromide for critical uses in January 2005 and that the applicant needed to import it for those purposes. It added that, although it had requested a methyl bromide import quota for critical use in September 2004, it was impossible to submit its application for an import licence via the ODS site.
25 As no reply was received, the applicant sent a second e-mail to the Commission on 11 January 2005, informing it that the situation was becoming critical since the applicant was unable to meet its customers’ requests for methyl bromide. On the same day, the Commission replied by e-mail stating that, according to the programmers, more time was needed. As the installation of the site was proving more difficult than anticipated, the most optimistic date for launching it was the week of 24 January 2005.
26 On 17 February 2005, the Commission informed the applicant that it was registered on the ODS site and that it could submit its application to import methyl bromide for critical uses. As two of the applicant’s customers obtained user licences on 18 February 2005, the applicant received a licence to import methyl bromide for critical uses on 21 February 2005.
27 By Commission Decision 2005/625/EC of 23 August 2005 determining the quantities of methyl bromide permitted to be used for critical uses in the European Community from 1 January to 31 December 2005 pursuant to the Regulation (OJ 2005 L 219, p. 47, ‘the decision of 23 August 2005’), the Commission determined, under Article 3(2)(ii) of the Regulation and in accordance with the criteria in Decision IX/6, the quantities of methyl bromide permitted to be used for critical uses in the Community from 1 January to 31 December 2005. The Commission has stated that those quantities equated to 13% of the 1991 consumption, whereas the quantity of methyl bromide that was permitted to be placed on the market under Article 3(2)(i)(c) of the Regulation in 2003 and 2004 represented 25% of that consumption.
Procedure and forms of order sought by the parties
28 The applicant brought the present action by application lodged at the Registry of the Court of First Instance on 13 May 2005.
29 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Second Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure of the Court of First Instance, it requested the Commission to submit certain documents and it put questions in writing to the applicant and the Commission. The parties acceded to those requests within the time-limit allowed.
30 The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 28 November 2006.
31 The applicant claims that the Court should:
– declare the action admissible and well founded;
– order the Commission to pay the applicant the amount indicated in the application for the damage suffered by it as a result of the Commission’s failure to establish a system allowing the applicant to import methyl bromide in January and February 2005, or any other amount as established by the applicant in the course of the proceedings or by the Court ex aequo et bono;
– in the alternative, rule by interlocutory judgment that the Commission is obliged to make reparation for the loss suffered and order the parties to produce to the Court, within a reasonable period from the date of the judgment, figures as to the amount of the compensation agreed between the parties or, failing agreement, order the parties to produce to the Court within the same period their submissions with detailed figures in support;
– order the Commission to pay the applicant compensatory interest at the rate of 8% per annum;
– order the Commission to pay the applicant interest at the rate of 8% or any other appropriate rate to be determined by the Court, calculated on the amount payable as from the date of the Court’s judgment until actual payment;
– order the Commission to pay the costs.
32 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
33 It is settled case-law that, for the Community to incur non-contractual liability within the meaning of the second paragraph of Article 288 EC for the unlawful conduct of its institutions, a set of three conditions must be met, namely the conduct of which the institutions are accused must have been unlawful, there must be actual damage and a causal link must exist between the conduct and the damage alleged (Case C-295/03 P Alessandrini and Others v Commission [2005] ECR I-5673, paragraph 61, and Case T-19/01 Chiquita Brands and Others v Commission [2005] ECR II-315, paragraph 76).
34 Since those three conditions are cumulative, the fact that one of them has not been satisfied is a sufficient basis on which to dismiss an action for damages, without it therefore being necessary to consider the other conditions (Case C-257/98 P Lucaccioni v Commission [1999] ECR I-5251, paragraph 14, and Case T-43/98 Emesa Sugar v Council [2001] ECR II-3519, paragraph 59).
35 It is in the light of those observations that it is necessary to examine, first, whether the condition relating to damage is met in the present case.
Damage
Arguments of the parties
36 The applicant considers that it suffered damage as a result of the Commission’s conduct, consisting in the loss of profit (lucrum cessans) which the applicant would have made from the sale of methyl bromide in January and February 2005 if the system allowing it to import methyl bromide in those two months had been put in place.
37 According to the applicant, the loss is past and certain, given that it received requests from its customers for methyl bromide which it was unable to meet and that the use of methyl bromide is seasonal, reaching its peak in January and February. Furthermore, the fact that it imported and sold large quantities of methyl bromide in January and February of the previous years and that it started to do so again as soon as the new system was operational shows, according to the applicant, that it would have also sold methyl bromide in January and February 2005.
38 On the basis of the difference between the sale price and the purchase price in March 2005, applied to sales in January and February 2004, the applicant assesses its loss of profit for January and February 2005 at the amount shown in the application.
39 The applicant disputes the figures produced by the Commission in the defence, which, in its view, are incorrect and different from those set out in its application. According to the applicant, the Commission’s figures for January and February 2003 and for January and February 2004 relate to the level of methyl bromide imports, not the level of sales. The sales figures for January and February 2004 in the application include the sales of methyl bromide in that period from stocks remaining from 2003. The applicant also states that, as it knew that the system was to change as of 1 January 2005, it did not keep any stocks of methyl bromide in 2004 for use in 2005.
40 The applicant also observes that the Commission’s figure for sales of methyl bromide in February 2005 is incorrect and represents the quantities the applicant imported in March 2005.
41 As for the Commission’s argument that the calculation basis used does not take account of the obligation to phase out the use of methyl bromide completely by 1 January 2005, the applicant replies that, at the date when it brought its action, it could not have known the extent to which its sales would be affected by the reduction in the quantities of methyl bromide used in the Community, particularly as the Commission did not publish the quantities authorised for critical uses in 2005 until 23 August 2005.
42 The applicant also refers, particularly in its arguments seeking to establish a causal link between the conduct complained of on the part of the Commission and the damage suffered by the applicant, to specific requests from its customers for methyl bromide. It relies on questionnaires, annexed to the application, which it sent to its customers and which six of them, namely undertakings S, PO, G, B, PI and T, completed and returned.
43 The Commission’s contention that the replies of the applicant’s customers to the questionnaires must be treated with caution is not supported by any evidence and is speculative. With regard to the Commission’s observations on the results of those questionnaires (see paragraph 48 below), the applicant states that:
– the fact that undertaking S did not request methyl bromide imports before June 2005 does not rule out the possibility that it would have ordered some in January and February 2005 if that had been possible;
– the information relating to undertakings PO and T covers a period after January and February 2005 and is therefore irrelevant to the present case;
– the fact that undertakings G and PI did not register as users after February 2005 is irrelevant as the present case relates only to January and February 2005, during which it was not possible for them to register as users.
44 The applicant acknowledges that two of its customers obtained a user licence on 18 February 2005. It adds that it was unable to meet orders for methyl bromide before March 2005 because the process preceding the transfer of methyl bromide to customers takes several weeks.
45 The applicant submits that the information produced by the Commission does not cast doubt on the fact that the Commission caused the applicant to lose sales in the first quarter of 2005. The applicant notes on this point that the Commission’s defence refers to a period of three months instead of the two months to which the application relates.
46 Finally, with regard to the Commission’s contention that the loss of trade may have been caused by users using up their stocks of methyl bromide, the applicant considers, first, that the Commission has not adduced any proof and, second, that that contention is erroneous in the light of the evidence provided and, in particular, the results of the questionnaires sent to the applicant’s customers.
47 The Commission denies that the applicant suffered a loss of trade which can be attributed to the Commission. It contends, first, that the basis for calculating loss and damage that is proposed by the applicant does not take account of the Community’s obligation to phase out the use of methyl bromide completely by 1 January 2005, subject to exemptions for critical uses. It follows that a reduction in the quantities of methyl bromide used in 2005 as against 2004 was to be expected. According to the Commission, the figures produced by the applicant do not reflect such a significant reduction as was to be expected. In any event, the figures available to the Commission for the applicant’s sales of methyl bromide in the first quarters of 2003, 2004 and 2005 do not show any significant drop. On the contrary, those figures show that the applicant increased its sales of methyl bromide in the first quarter of 2005 by almost 50% compared with the same period in 2004. Consequently, the Commission considers that the applicant suffered no discernible loss and damage as a result of the change in the system of applying for licences which took place on 1 January 2005.
48 With regard to the results of the questionnaires sent to the applicant’s customers, the Commission observes that, according to the information from the ODS site:
– undertaking S did not request stocks or imports from 1 January to 1 June 2005;
– undertaking PO requested methyl bromide on 11 March 2005, naming the applicant as importer. However, that request was cancelled on 18 March 2005 and resubmitted on 22 March 2005, naming a competitor of the applicant’s as importer;
– undertakings G and PI have not been registered on the ODS site;
– undertaking B received methyl bromide in February 2005;
– undertaking T requested methyl bromide on 25 March 2005 but used a competitor of the applicant’s to import it.
49 According to the Commission, this information shows that it did not cause the applicant to lose sales in the first quarter of 2005.
Findings of the Court
50 The damage alleged by the applicant is the loss of profit from the sales of methyl bromide that it would have made in January and February 2005 if the Commission had put in place a system enabling it to import methyl bromide.
51 Loss of profit is one of the forms of loss that is recoverable under Community law (see, to that effect, Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061, paragraph 26).
52 According to settled case-law, the damage for which compensation is sought must be actual and certain, which it is for the applicant to prove (Case C-243/05 P Agraz and Others v Commission [2006] ECR I-0000, paragraph 27, and Case T-99/98 Hameico Stuttgart and Others v Council and Commission [2003] ECR II-2195, paragraph 67). On the other hand, damage that is purely hypothetical and indeterminate does not confer an entitlement to compensation (see, to that effect, Case T-267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 73, and Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-981, paragraph 114).
53 It is therefore necessary to determine in the present case whether the applicant has proved that it actually incurred the loss of profit alleged. The applicant seeks to demonstrate its loss by reference to its sales of methyl bromide in January and February 2004 and to prices in March 2005. It also refers to the results of the questionnaires sent to its customers, which state that it was impossible for them to place orders with the applicant, and to their specific requests for methyl bromide.
54 As regards, first, proof of the alleged loss by reference to the applicant’s sales of methyl bromide in January and February 2004 and to prices in March 2005, it should be noted that the probative value of that evidence depends, as the Commission rightly submits, on the extent to which the circumstances and the context of the applicant’s economic operations in January and February 2005 were different from those in January and February 2004. The greater the change in those circumstances and context, the less probative that evidence is in the present case.
55 The framework within which methyl bromide could be imported and placed on the market underwent a fundamental change on 1 January 2005. In accordance with Article 3(2)(ii) and (4), Article 4(2)(i)(d) and the second indent of Article 4(4)(i)(b) of the Regulation, the placing of methyl bromide on the market in 2005 was limited to the quantities necessary to meet the needs for critical uses and could be effected only when all stocks were exhausted and if no technically and economically feasible alternative within the meaning of Decision IX/6 was available. However, that was not the case in 2004 since, until 31 December 2004, it was permitted under Article 4(2)(i)(c) of the Regulation to place on the market quantities determined on the basis of the importers’ historical market share. Furthermore, according to the information provided by the Commission and not disputed by the applicant, until 2004 only eight importers were able to import methyl bromide and had a quota which guaranteed them their market share, whereas in 2005 there were 19 importers registered on the ODS site, none of whom were allocated a quota, since individual quotas were granted only to fumigators in 2005. Finally, by the decision of 23 August 2005, the Commission authorised the placing on the market, for 2005, of a quantity of methyl bromide which was equivalent to only 13% of 1991 consumption, whereas in 2003 and 2004 the quantity of methyl bromide authorised to be placed on the market under Article 3(2)(i)(c) of the Regulation represented 25% of that consumption.
56 The circumstances and the context of the applicant’s economic operations were therefore significantly different in January and February 2005 from those in January and February 2004. In the light of those differences, the evidence of the loss allegedly suffered by the applicant by reference to sales in January and February 2004 is based on an inappropriate comparison, since the change in sales the applicant refers to may be attributable to other significant factors. Accordingly, the data submitted by the applicant concerning the quantities of methyl bromide which it alleges it would have sold in January and February 2005 are not sufficient to demonstrate that there was definite and quantifiable damage (see, to that effect and by analogy, Case 1/55 Kergall v Common Assembly [1954 to 1956] ECR 151, and Case T‑108/94 Candiotte v Council [1996] ECR II-87, paragraph 54).
57 In the light of the foregoing, the applicant’s argument that it could not have known, at the date when it brought its action, the extent to which its sales would be affected by the reduction in the quantities of methyl bromide used in the Community because the Commission had not yet published the quantities authorised for critical uses in 2005 is irrelevant. In so far as the evidence adduced by the applicant is based on an inappropriate comparison, the basis of its calculation is distorted. It should be added that, in any event, even in the subsequent stages of the proceedings the applicant did not amend or substantiate its arguments as regards the nature or the extent of the alleged loss arising from that reduction, even though, at the date when it lodged its reply, the decision of 23 August 2005 determining the permitted quantities had been published several weeks previously.
58 Moreover, the Court considers that the sales figures for January and February 2004 and the prices in March 2005 cannot be sufficient on their own to establish that there was actual loss. It is true that the statistics provided by the applicant show that its sales fell in January and February 2005 by comparison with its sales in January and February 2004. However, those figures for January and February 2004 on their own are, at best, statistics that are open to interpretation and have only an illustrative value (see, to that effect and by analogy, Case 26/74 Roquette Frères v Commission [1976] ECR 677, paragraph 23, and Case 49/79 Pool v Council [1980] ECR 569, paragraph 9), particularly in view of the changes in the context of the applicant’s economic operations referred to at paragraph 55 above.
59 Secondly, it follows from the above that, in the present case, the applicant must provide the Court with proof of actual damage specifically suffered in the course of its business (see, to that effect and by analogy, Roquette Frères v Commission, paragraph 23). In this connection, it is to be noted that the consequences of the ODS site not being available in January and February 2005 must have been the same for all importers. Therefore, in order to establish that there was damage, the applicant is required to prove to the requisite standard that the drop in its sales in January and February 2005 could not subsequently be made good and that its losses are due to the conduct that it complains of on the part of the Commission. In that regard, the applicant puts forward the questionnaires annexed to its application and completed by its customers, the undertakings S, PO, G, B, PI and T, and it claims to have received specific requests from its customers for methyl bromide in January and February 2005.
60 With regard, first, to the results of the questionnaires, it should be noted that they date from the end of April and the beginning of May 2005 and that they indicate by means of ticked boxes that those undertakings are customers of the applicant, that the undertakings did not purchase methyl bromide in January or February 2005, that this was due to the fact that no regulatory framework was in place (replies of undertakings S, PO, G, PI and T) or that no methyl bromide was available (reply of undertaking B), and that it was no longer possible at the time when the questionnaires were completed or subsequently to purchase quantities to meet the needs in January and February 2005, fumigation using methyl bromide being seasonal. Only undertaking G replied, in addition, on 12 April 2005, to an initial questionnaire containing supplementary questions on the quantities of methyl bromide purchased by the customer in January and February 2004 and the quantities the customer would have purchased in January and February 2005 if the regulatory framework had been in place. Undertaking G stated that it had intended to purchase from the applicant in January and February 2005 the same quantity of methyl bromide as it had purchased in January and February 2004.
61 As regards the probative value of the questionnaire results adduced by the applicant in the present case, the Court considers that the loss of a sale to a customer which could not subsequently be recovered must be proved by means of sufficiently precise evidence. In this instance, the replies of undertakings S, PO, B, PI and T to the questionnaires, which postdate the period at issue, do not contain any statement to indicate that those undertakings intended to purchase a specific quantity of methyl bromide from the applicant in January and February 2005. The questionnaire completed by those undertakings (unlike the initial questionnaire completed by undertaking G) did not contain any question to that effect and none of those customers indicated a quantity of methyl bromide that it would have wished to purchase from the applicant during the period at issue. Consequently, the replies of undertakings S, PO, B, PI and T cannot be regarded as constituting sufficiently convincing proof of a loss of sales to those customers.
62 Moreover, it is clear from the information provided by the Commission that undertaking B obtained a licence on 18 February 2005 and placed an order which the applicant fulfilled in March 2005, as the transfer of methyl bromide to customers takes a few weeks, but it did not specify any additional quantity that it would have ordered during the period at issue. In addition, undertaking S did not take any steps to obtain methyl bromide between 1 January and 1 June 2005. Further, whilst undertakings PO and T did take such steps in March 2005, they used other importers in order to purchase methyl bromide. With the exception of undertaking G, which was not, however, registered on the ODS site in January and February 2005 (see paragraph 66 below), the Court does not therefore have available to it evidence of any actual intention to purchase specific quantities of methyl bromide from the applicant in January and February 2005.
63 It should also be observed that the replies to the questionnaires, which were given by the applicant’s customers between 12 April 2005 and the beginning of May 2005, simply indicate that the sales that did not take place in January and February 2005 could no longer take place at the time when the questionnaires were completed, that is two months or more after the ODS site started to operate. However, the replies do not rule out the possibility that those sales could have been made up in March 2005, since the period of the seasonal use to which the applicant refers has not been clearly defined. The applicant has failed to substantiate by any other means its assertion that January and February are the peak season for the use of methyl bromide, even though the Commission substantively disputed that claim in its defence, in particular by referring to the fact that the applicant did not import any methyl bromide in January and February 2003 or in January 2004. The Commission’s position is supported by the examples relating to undertaking B, which obtained a licence on 18 February 2005 and purchased methyl bromide from the applicant at the beginning of March 2005, and to undertakings PO and T, which applied for methyl bromide licences in March 2005.
64 In addition, it is clear from the information provided by the Commission, which is not disputed by the applicant, that despite the more restrictive circumstances referred to at paragraph 55 above, the applicant’s methyl bromide imports during the whole of the first quarter of 2005 are not significantly lower than in the first quarters of 2003 and 2004 but, on the contrary, are higher than in the first quarter of 2004. That increase seems to indicate that sales which did not take place in January and February 2005 were made up in March 2005. In that regard, the applicant simply observes that the figures cited by the Commission relate only to imports and do not take account of sales of its stock in 2004 (although it does not make the same comment in relation to 2003). However, the applicant has not produced to the Court sales figures for January and February 2003 or those for March 2003, 2004 and 2005, which might have indicated that the allegedly seasonal nature of the sale and use of methyl bromide is limited to January and February. Therefore, the applicant has failed to demonstrate that sales that did not take place in January and February 2005 could not have been made up in March 2005 or that some of its customers did not elect to obtain their supplies from its competitors in March 2005.
65 Finally, for the applicant to have made a sale of methyl bromide in January and February 2005 would have required the customer to satisfy the conditions set out in Article 3(2)(ii) and (4) of the Regulation, so as to enable the applicant to meet a request under the second indent of Article 4(4)(i)(b) of the Regulation, which authorises it to sell a specific quantity of methyl bromide. Those conditions include, inter alia, the condition that the customer be registered on the ODS site and have no more stocks of methyl bromide available to it.
66 In the present case, undertakings G and PI were not registered on the ODS site in January and February 2005. The applicant’s claim that it was impossible for undertaking G to become registered on the ODS site during those two months has not been substantiated. Such evidence was necessary, in view of the fact that registration is carried out through the Member States and of the fact that the Commission observed at the hearing that all fumigators had the opportunity to become registered in January and February 2005. Moreover, the evidence provided by the applicant does not show that there were no remaining stocks available to its customers during those two months. In particular, the results of the questionnaires do not disclose any information relating to stocks, contrary to the applicant’s claims. Consequently, the applicant has failed to provide the Court with adequate evidence to demonstrate that its customers met the conditions necessary for the sales that were allegedly lost to take place.
67 In light of the foregoing, the questionnaire results produced by the applicant do not establish to the requisite standard that there was any loss.
68 Secondly, it must be held, with regard to the specific requests of the applicant’s customers to which it refers in both its application and its communications with the Commission, that the applicant has failed to provide any evidence, other than the questionnaire results examined above, to demonstrate that the customers which replied to the questionnaires or any other customers actually wished to purchase specified quantities of methyl bromide from the applicant in January and February 2005, that such sales were not possible as a result of the conduct on the part of the Commission complained of and that those sales could not be made up in March 2005. It follows that the applicant has failed to prove any actual damage specifically suffered in the course of its business.
69 For the sake of completeness, it must be held that the calculation of the damage put forward by the applicant does not, in any event, make it possible for the damage allegedly suffered to be assessed.
70 As is apparent from the case-law, damage corresponding to a loss of profit consists in the difference between the profit which an applicant would have made in the normal course of events and the profit which it actually made during the period in question (see, to that effect, Mulder and Others v Council and Commission, paragraph 26).
71 The applicant calculates its alleged damage by multiplying the quantity of potential sales of methyl bromide in January and February 2005 by the difference between the sale and purchase prices in March 2005. The difference between the sale and purchase prices does not show the profit made from such transactions or, as a consequence, the loss alleged. The applicant has therefore failed to provide the Court with the evidence needed to support the calculation of its alleged loss. The applicant’s offer of evidence at the hearing, in response to a question put by the Court, in order to show the expenditure it has to incur in connection with its methyl bromide sale and import transactions must be rejected as being out of time, pursuant to Article 48(1) of the Rules of Procedure.
72 In the light of all of the above, the Court finds that the applicant has failed to establish the existence of damage.
73 Consequently, the applicant’s principal claim must be rejected.
The applicant’s claim in the alternative
74 In those circumstances, the Court considers that it is inappropriate to grant the applicant’s alternative claim, seeking a ruling that the Commission is obliged to make reparation for the loss suffered and an order that the parties produce to the Court, within a reasonable period, figures as to the amount of the compensation agreed between the parties or, failing agreement, an order that the parties produce to the Court within the same period their submissions with detailed figures in support.
75 It is apparent from the case-law that, in order to allow such a claim, which seeks a subsequent assessment of the damage, those factors which give rise to the Community’s liability must be established so that only the exact amount of the compensation remains to be determined (see, to that effect, Mulder and Others v Council and Commission, paragraph 37, and Case T-76/94 Jansma v Council and Commission [2001] ECR II-243, paragraph 102). That is not the case in this instance, since the condition relating to the existence of damage has not been met (see paragraphs 54 to 67 above).
76 Accordingly, the action must be dismissed.
Costs
77 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Commission.
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders the applicant to bear its own costs and those incurred by the Commission.
Pirrung | Forwood | Papasavvas |
Delivered in open court in Luxembourg on 22 May 2007.