Judgment_paragraph 106 · Afrikanische Frucht-Compagnie GmbH and Internationale Fruchtimport Gesellschaft Weichert & Co. v Council of the European Union and Commission of the European Communities (T-64/01, T-65/01)

106Turning, second, to the allocation formula, the applicants state that, for the determination of the reference quantities for 1999, in so far as they were based on imports into the new Member States in 1994 and during the first three quarters of 1995, actual imports were assessed on the basis of proof of payment of customs duties. This ‘customs duties payment criterion’ is manifestly ill-suited to the objective pursued in this area by the Community legislature, namely to ‘maintain, in the distribution of the tariff quota, the position of economic operators who, before 1 January 1999 bore the commercial risk of importing bananas’. By that criterion, imports into the new Member States in 1994 or during the first three quarters of 1995 would be taken into account ‘solely from the point of view of their having been placed in free circulation’. In other words, according to the applicants, the allocation formula laid down in Regulation No 2362/98 had the consequence that rights were granted only to operators in the new Member States and traditional suppliers were deprived of their assets. Lastly, they dispute the relevance of the Council's and the Commission's reference to paragraphs 94 and 95 of Case T-30/99 Bocchi Food Trade International v Commission [2001] ECR II-943, since that case did not examine ‘the scope and the effects of [that] distribution formula’.