10With regard to the alleged loss, the Court of First Instance held as follows:70 It must be borne in mind that, according to the case-law (Case 51/81 De Franceschi v Council and Commission [1982] ECR 117, paragraph 9; Joined Cases 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer and Others v Council and Commission [1982] ECR 85, paragraph 9; and Case T-478/93 Wafer Zoo v Commission [1995] ECR II-1479, paragraph 49), the damage for which compensation is sought must be actual and certain.71 It is for the applicant to produce to the Court the evidence to establish the fact and the extent of the loss which he claims to have suffered (Case 26/74 Roquette Frères v Commission [1976] ECR 677, paragraphs 22 to 24; Case T-575/93 Koelman v Commission [1996] ECR II-1, paragraph 97; and Case T-184/95 Dorsch Consult v Council and Commission [1998] ECR II-667, paragraph 60).72 The applicants evaluate their loss at the precise difference between the amount of the aid fixed in Regulation No 1519/2000 and that which would have been applied had the Commission taken the Chinese prices into consideration.73 First of all, it is appropriate to observe that the Chinese prices on which the applicants base their argument are those which they obtained through the Spanish diplomatic services in Beijing. The relevant price was the average price for tomatoes paid to producers in the province of Xinjiang, representing, according to the applicants, approximately 88 % of Chinese production of processed tomatoes. Those figures are disputed by the Commission, in that they represent a low average. Nor was the Commission in a position to ascertain whether they were consistent with the provisions of the basic regulation. When evaluating a complex economic situation, the Commission's discretion also applies to the finding of the basic facts (see, to that effect, Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 25).74 As the basic regulation confers on the Commission a certain discretion in fixing the amount of the aid, it is impossible to determine with certainty what the impact on the amount of the aid would have been had the price paid to Chinese tomato producers been taken into account. Article 4(1) [of the basic regulation] does not provide that the production aid must be equal to the difference between the minimum price paid to the producer in the Community and the price of the raw material in the main producing and exporting third countries. It merely fixes an upper limit.75 In that regard, it should be observed that the fact that the Commission may in the past have fixed the amount of the aid at a level which precisely reflected the difference between the minimum amount paid to the producer in the Community and the price of the raw material in the main producing and exporting third countries did not in any way require it to maintain the aid at that level. It would even be contrary to the letter and the purpose of the basic regulation for the Commission not to take account of developments in the situation of international markets and possibly thereby make the disposal of the Community product more difficult.76 The applicants cannot therefore rely on a right to a maximum aid equivalent to the difference between the minimum price paid to the producer in the Community and the price of the raw material in the main third countries after the Chinese prices had been taken into account.77 Accordingly, the damage calculated by the applicants and set out in the table in Annex A.27 to the application cannot be certain.’
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.