8In that connection, the Court of First Instance found as follows:‘ Unlawfulness of the conduct alleged against the Commission...57 Although the measures of the Council and Commission in connection with a proceeding relating to the possible adoption of antidumping measures muslin principle be regarded as constituting legislative action involving choices of economic policy, so that the Community can incur liability by virtue of such measures only if there has been a sufficiently serious breach of a superior rule of law for the protection of individuals ([Case T-167/94] Nolle v Council and Commission [[1995] ECR II-2589], paragraph 51), the special features of the present case must be pointed out. In the present case, the damage at issue arose from the allegedly unlawful conduct of the Commission when itexamined the October 1997 report with the intention of checking whether [Fresh Marine] had complied during the third quarter of 1997 with the undertaking, the acceptance of which had brought to an end the antidumping and anti-subsidy investigation in regard to it. That allegedly unlawful conduct led the Commission to believe that [Fresh Marine] had broken its undertaking. It took place in the course of an administrative operation which specifically and exclusively concerned [Fresh Marine]. Thaioperation did not involve any choices of economic policy and conferred on the Commission only very little or no discretion.58 It is true that the alleged unlawfulness of the Commission's conduct caused the alleged damage only when, and because, it was confirmed by the adoption of provisional measures against imports of [Fresh Marine]'s products within the framework of Regulation No 2529/97. However, the Commission, in that regulation, did no more with regard to [Fresh Marine] than draw the appropriate provisional conclusions from its analysis of the abovementioned report, in particular from the level of the average price of exports charged by [Fresh Marine] during the period covered by that report (see the ninth recital in the preamble to Regulation No 2529/97).59 Furthermore, the background to the cases giving rise to the judgments relied on by the Commission in its written submissions..., in which the Community judicature characterised the measures of the Council and the Commission in an antidumping proceeding as legislative acts involving choices of economic policy, was radically different from that of the present dispute. In those cases, unlike the present case, the applicants sought compensation for damage, the operative event for which was a choice of economic policy made by the Community authorities in the context of their legislative power.60 Thus, in [Case C-122/86] Epicheiriseon Metalleftikon Viomichanikon kai Naftiliakon and Others v Commission and Council [[1989] ECR 3959], the applicants sought compensation for the damage which they claimed to have suffered as a result of the Council's decision to close an antidumping proceeding without adopting the regulation proposed by the Commission for the imposition of a definitive antidumping duty on the relevant imports. In Nolle v Council and Commission, cited... above, a Community importer sought compensation for damage allegedly suffered as a result of the adoption by the Council of a regulation introducing a definitive antidumping duty and definitively collecting the provisional antidumping duty, a regulation which had been declared invalid by the Court of Justice on grounds relating to the conditions under which the Community authorities had chosen the reference country when determining the normal value of the products at issue.61 In conclusion, mere infringement of Community law will be sufficient, in the present case, to lead to the non-contractual liability of the Community (see [Case C-352/98 P] Bergaderm and Goupil v Commission [[2000] ECR I-5291], paragraph 44). In particular, a finding of an error which, in analogous circumstances, an administrative authority exercising ordinary care and diligence would not have committed will support the conclusion that the conduct of the Community institution was unlawful in such a way as to render the Community liable under Article 215 of the [EC] Treaty [now Article 288 EC].62 It is therefore necessary to examine whether the Commission, when monitoring compliance by [Fresh Marine] with its undertaking on the basis of the October 1997 report, committed an error which an administrative authority exercising ordinary care and diligence would not have committed in the same circumstances....75 At first sight, on reading [the] final entries in the October 1997 report, it was possible to adopt the view that [Fresh Marine] had observed its undertaking during the period covered by that report76 Even if it is accepted that the terms of [Fresh Marine]'s undertaking did not provide for the possibility of including negative values in the quarterly sales reports, the Commission could not, when faced with a report which, at firstglance, suggested that [Fresh Marine] had complied with its undertaking, take it upon itself, as it did in the present case..., unilaterally to change the content of that report by deleting lines containing negative values and replacing the final entries... with its own calculations, carried out on the basis of the report thus amended, of the average export price charged by [Fresh Marine] during the period in question, without explaining to it the reasons prompting it to ignore those final entries and without checking with it whether the changes so made affected the reliability of the information provided in order to monitor compliance with the undertaking. Having decided not to accept the first impression given by the October 1997 report, which was favourable to [Fresh Marine], the Commission was bound to exercise due care in interpreting correctly the data provided in that report, on which it intended to base its finding as to whether or not [Fresh Marine]'s conduct amounted to compliance with the undertaking during the period in question.77 It cannot, in that connection, rely on the provisions of Article 8(10) of Regulation No 384/96 or Article 13(10) of Regulation No 2026/97.78 Those provisions aim to enable the Commission, where there are grounds for believing on the basis of the best information available to it that an undertaking which it has initially accepted in the context of an antidumping or anti-subsidy proceeding has been breached, to take in good time any necessary provisional measures in order to protect the interests of the Community industry, without prejudice to a subsequent examination of the merits in order to check whether the undertaking in question has in fact been breached.79 However, in the present case, the Court holds that the October 1997 report, in particular its final entries, suggested that [Fresh Marine] had complied with its undertaking...80 It was after it had amended that report on its own initiative, without taking the precaution of asking [Fresh Marine] what possible impact its unilateral action might have on the reliability of the information which [Fresh Marine] had provided, that the Commission concluded that there had been an apparent breach of the undertaking by [Fresh Marine]. The data contained in the October 1997 report, amended in that way, evidently cannot therefore be considered the best information, within the meaning of the provisions referred to in paragraph 77 above, available to the Commission at the time on which to base its conclusion as to whether [Fresh Marine] had complied with its undertaking....82 It must therefore be held that, when analysing the October 1997 report, the Commission committed an error which would not have been committed in similar circumstances by an administrative authority exercising ordinary care and diligence....84 However, it must be pointed out that [Fresh Marine]'s conduct is not blameless either...89 In view of the complexity of its October 1997 report, the lack of obvious links between the erroneous lines and those containing negative values and the ambiguity of those values, [Fresh Marine], without being prompted, should have sent to the Commission, with the report, the explanations necessary in order to understand that report. By sending the October 1997 report without any comment to that effect, [Fresh Marine] was guilty of negligence which, as the letter which the Commission sent it on 5 January 1998 shows..., confused the Commission's officials...91 ... the Court holds that [Fresh Marine] and the Commission were equally at fault during the investigation as to whether [Fresh Marine] had complied with its undertaking during the third quarter of 1997 and at the end of which the Commission found that there had been an apparent breach of the undertaking making it necessary to take provisional measures against imports of [Fresh Marine]'s products in the framework of Regulation No 2529/97. For its part, [Fresh Marine], by failing of its own accord to append to its October 1997 report the explanations required for the correct understanding of the negative values appearing in it, showed such negligence as would never have been committed by a trader exercising ordinary care and diligence. Even taking into consideration such irregular conduct on the part of [Fresh Marine] and the confusion which such conduct may have caused when the report was read, the Court holds that the Commission's reaction, in unilaterally amending that report even though it suggested, prima facie, that [Fresh Marine] had complied with its undertaking during the period in question, was disproportionate and therefore unlawful, and could not be excused in any circumstances.92 If the damage alleged by [Fresh Marine] is proved, even in part, and if it is apparent that a causal link exists between that damage and the events leading to the imposition of provisional measures on imports of its products, the question which must now be considered, it will be appropriate, when determining the Commission's obligation to make reparation, to take account of the fact that each party bears half of the responsibility for those events.The alleged damage and the causal link between it and the wrongful conduct of the Commission...106 So far as concerns, first, loss of profit between 18 December 1997 and 25 March 1998, it must be observed that the figures given by the Commission for exports of farmed Atlantic salmon by [Fresh Marine] to the Community between July 1997 and September 1998 show that [Fresh Marine] wholly suspended its exports during the period from approximately mid-December 1997 to the end of March 1998...109 In light of those circumstances, it is necessary to assess the amount of the loss of profit suffered by [Fresh Marine] as a result of the suspension of its exports to the Community between 18 December 1997 and 25 March 1998. Thailoss of profit must be considered to equate to the profit which it would have made if it had continued to export to the Community during that period....115 The loss of profit suffered by [Fresh Marine] will therefore be fixed at NOK 292000 in respect of the period between 18 December 1997 and 31 January 1998, NOK 135000 in respect of February 1998 and NOK 150000 in respect of the period from 1 to 25 March 1998....117 It is necessary now to determine whether there is a causal link between the loss or damage to [Fresh Marine]'s business... and the wrongful conduct of the Commission, confirmed by Regulation No 2529/97...118 There is a causal link for the purposes of the second paragraph of Article 215 of the Treaty where there is a direct causal nexus between the fault committed by the institution concerned and the injury pleaded, the burden of proof of which rests on the applicant (Case T-149/96 Coldiretti and Others v Council and Commission [1998] ECR II-3841, paragraph 101, and the cited case-law). The Community cannot be held liable for any damage other than that which is a sufficiently direct consequence of the misconduct of the institution concerned (see, in particular, Joined Cases 64/76 and 113/76, 167/78 and 239/78, 27/79, 28/79 and 45/79 Dumortier and Others v Council [1979] ECR 3091, paragraph 21; Case T-168/94 Blackspur and Others v Council and Commission [1995] ECR II-2627, paragraph 52, and [Case T-13/96] TEAM v Commission [[1998] ECR II-4073], paragraph 68).119 In the present case,... the period during which [Fresh Marine] suspended its exports to the Community coincides with that during which the provisional measures imposed by Regulation No 2529/97 applied to imports of its products. That must be interpreted as evidence of the existence of a causal link between the irregularities, in particular those committed by the Commission, giving rise to the imposition of provisional measures, on the one hand, and the loss of profit, on the other.120 It is, indeed, undeniable that, were it not for such irregularities and the provisional measures which followed them, [Fresh Marine] would have continued its exports to the Community in compliance with its undertaking. It would thus have suffered no loss of profit on the Community market. The misconduct of the Commission, when analysing the October 1997 report, and which was confirmed by Regulation No 2529/97, is therefore causally linked, within the meaning of the case-law referred to in paragraph 118 above, with the loss or damage to [Fresh Marineļ's business.121... In that regard, it is necessary to ascertain whether, as the case-law requires, [Fresh Marine] showed reasonable diligence in limiting the extent of the damage which it claims to have suffered, a matter which the Commission disputes (see, Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061, paragraph 33; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 85; and Case C-284/98 P Parliament v Pieher [2000] ECR I-1527, paragraph 57).122 The Commission's argument is that, in view of the fact that the duties imposed by Regulation No 2529/97 were provisional, [Fresh Marine] could, by providing a modest amount for the setting-up of a bank guarantee, have continued to export to the Community at unchanged prices....124 However, even supposing that [Fresh Marine], which has not disputed the Commission's statements regarding the cost of such a bank guarantee, had obtained one, the Court holds that it would have run an unusual commercial risk, beyond the level of risk inherent in any commercial enterprise, by exporting to the Community during the period when Regulation No 2529/97 was applicable to imports of its- products. If, once that bank guarantee had been issued, it had, as the Commission suggests, decided to export to the Community at unchanged prices- without passing on to its Community customers the amount of the provisional duties through the prices it charged, it would have run the risk of having to bear on its own the burden of those duties should they ever have been collected definitively. Since it was not able to tell at that time whether that would eventually be the case, it therefore had no Option but to increase its export prices by the amount of those provisional duties. Having regard in particular to competition from Community companies selling sailmon and from the numerous Norwegian exporters which had been able to continue to sell on the Community market within the terms of their undertakings during the period in question, [Fresh Marine] could reasonably have taken the view that there was no chance of finding an outlet for its products on that market during that period.125 In view of those circumstances, the absence of any attempt by [Fresh Marine] to export its products to the Community during the period in question cannot be regarded as a failure to fulfil the obligation, laid down in the case-law referred to in paragraph 121 above, to show reasonable diligence in mitigating the extent of the damage which it claims to have suffered....131 ... the Court holds, on reading the letters of 30 January and 2 February 1998..., that the Commission did not take the necessary and appropriate measures which the party causing the damage must take where damage, such as that at issue here, is ongoing (see, to that effect, Parliament v Bieber, cited in paragraph 121 above, paragraph 57) in order to limit the extent of the damage to which its misconduct, when it was verifying compliance by [Fresh Marine] with its undertaking, had contributed.132 It is clear from the case-file that, following the explanations provided by [Fresh Marine] at the beginning of January 1998... and the investigation carried out at its premises at the end of that month..., the Commission had become convinced, at least as from 30 January 1998, as attested by its letter of that date, that [Fresh Marine] had complied with its undertaking in the course of the third quarter of 1997. However, the Commission, which, in its own words... and as is shown moreover by the fact that it adopted Regulation No 651/98, was alone entitled in the present case to lift the provisional measures imposed on imports of [Fresh Marine]'s products by Regulation No 2529/97, for no obvious reason delayed until 25 March 1998 before giving [Fresh Marine], by means of Regulation No 651/98, the formal legal reassurance which it could have given at the end of January 1998. Although it could have realised during the abovementioned investigation at the [Fresh Marine]'s premises that [Fresh Marine] was suffering considerable commercial loss as a result of the application of those provisional measures..., by its letter of 2 February 1998 it unjustifiably perpetuated the doubts as to the final outcome regarding the provisional duties imposed by Regulation No 2529/97. It thus dissuaded [Fresh Marine] from resuming commercial activities on the Community market....134 For having thus failed to take the necessary measures as soon as the irregularities giving rise to the imposition of provisional measures on imports of [Fresh Marine]'s products were definitively rectified, the Commission must be held solely responsible for [Fresh Marine]'s loss of profit, at least as from the end of January 1998.135 It must therefore be held that, although, as is apparent from the grounds set out in paragraphs 73 to 92 above, [Fresh Marine] contributed to the same extent as the Commission in causing loss or damage to its business, continuation of that loss after the end of January 1998 is, on the other hand, exclusively due to a failure by the Commission to exercise due care; even though the explanations which it had obtained from [Fresh Marine] had definitely made it possible to correct their respective prior errors and removed any reason to continue to believe that the undertaking had been breached, the Commission delayed, for no apparent reason, in regularising [Fresh Marine]'s situation by withdrawing the provisional measures originally imposed against it.136 It follows that the Commission must be held to be liable for one half of the loss of profit suffered by [Fresh Marine] between 18 December 1997 and 31 January 1998 and for all the loss caused to [Fresh Marine] from 1 February to 25 March 1998...137 In conclusion, the Commission will be ordered to pay to [Fresh Marine], first, one half of NOK 292000 in respect of [Fresh Marine]s loss of profit between 18 December 1997 and 31 January 1998 and, second, NOK 285000 (NOK 135000 + NOK 150000) as compensation for the damage caused to [Fresh Marine] from 1 February to 25 March 1998, that is a total amount of NOK 431000. The remainder of the application will be dismissed.’
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