Banana saga : Cases T-69/00, T-151/00, T-383/00 & T-135/01 Liability in absence of illegality

Now here's an odd and interesting twist in the banana saga. Remember a while ago (see the posts for February 14th, 2005 to be precise, and again for March 8th, 2005 the banana traders who suffered loss and damage as a result of the EC banana regime declared illegal by the WTO sued the EC in damages and lost ? (T-19/01 Chiquita Brands v. Commission).

This time, it's not the banana traders suing the EC for damages, it is the EC exporters who suffered from the temporary compensatory measures imposed by the United States who claimed compensation from the EC. What happened was that the United States imposed a 100% customs tariff on certain goods from a number of EC member States from April 19th 1999 to June 30th 2001 pursuant to section 301 of the Trade Act 1974 (19 U.S.C § 2411) (for an overview, see here) and authorized according to Article 22 § 7 of the Understanding on Rules and Procedures Governing the Settlement of Disputes. They lost quite a bit of trade as a consequence. So they sued the Council and Commission in damages.

They lost. The Court of First Instance dismissed the claim of the traders in its judgments in Case T-151/00 Laboratoire du Bain v Council and Commission and in Case T-135/01 Giorgio Fedon & Figli v. Council and Commission (Update: The judgments have not been published in English). See also Case T-69/00 FIAMM v. Council and Commission and Case T-383/00 Beamglow Ltd v. European Parliament, Council and Commission

First, the Court of First Instance held that the Community institutions had not breached any principle of EC law and repeated that it had no jurisdiction to evaluate compliance by those institutions with the WTO agreements (see inter alia Case C-149/96 Portugal v. Council).

Then, rather tantalizingly, the Court of First Instance examined whether the institutions could be liable in damages even in the absence of any illegality on their part. The Court exhumed the rather obscure judgment in Case 81/86 De Boer Buizen v. Council and Commission. But to succeed, the plaintiffs had to show that the loss and damage they suffered was special and abnormal. The Court of First Instance held that it was not. The suspension of tariff concessions or the imposition of measures such as those imposed by the United States in this case are part and parcel of the normal vicissitudes of the current international trade system. At least according to the Court of First Instance.
A bit like being hit by a car. Happens to people in the street, alas.