Case T-139/01

Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co.

v

Commission of the European Communities

(Common organisation of the markets – Bananas – Imports from ACP States and non-member countries – Regulation (EC) No 896/2001 – Regulation (EC) No 1121/2001 – Action for annulment – Admissibility – Person individually concerned – Action for damages)

Summary of the Judgment

1.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Regulations establishing detailed rules for the arrangements for importing bananas into the Community – Actions by certain traditional operators – Inadmissibility

(Art. 230, fourth para., EC; Commission Regulations Nos 896/2001 and 1121/2001)

2.      Non-contractual liability – Conditions – Sufficiently serious breach of a superior rule of Community law protecting individuals – Institution without a discretion – Sufficiency of a mere infringement of Community law

(Art. 288, second para., EC)

1.      A measure of general application such as a regulation may, in certain circumstances, be of individual concern to a natural or legal person and thus in the nature of a decision in regard to that person.

Such is not however the case, regarding certain traditional operators, of Regulation No 896/2001 laying down detailed rules for the application of Regulation No 404/93 as regards the arrangements for importing bananas into the Community, or of Regulation No 1121/2001, fixing the adjustment coefficients to be applied to each traditional operator’s reference quantity under the tariff quotas for imports of bananas. Those regulations constitute measures of general application, which do not affect the said operators by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as which the addressee of a decision is. Those operators cannot therefore be regarded as individually concerned, within the meaning of Article 230, para. 4, EC, by the aforementioned regulations.

(see paras. 107, 115)

2.      In order for the Community to incur non-contractual liability within the meaning of the second paragraph of Article 288 EC a number of conditions must be satisfied: the alleged conduct of the institutions must be unlawful, there must be actual damage and there must be a causal link between the alleged conduct and the damage pleaded.

Concerning the first of those conditions, it is necessary that there be a sufficiently serious breach of a rule of law intended to confer rights on individuals. As regards the requirement that the breach be sufficiently serious, the decisive test for finding that it is fulfilled is whether the Community institution concerned manifestly and seriously disregarded the limits on its discretion. Where that institution has only a considerably reduced discretion, or even none, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach.

(see paras. 141-142)