1 By application lodged at the Court Registry on 8 September 1995 Odigitria AAE brought an appeal against the judgment of the Court of First Instance of the European Communities (First Chamber) of 6 July 1995 in Case T-572/93 Odigitria v Council and Commission [1995] ECR II-2025 (hereinafter "the judgment under appeal"), by which the Court of First Instance dismissed as unfounded the application for a declaration, pursuant to the second paragraph of Article 215 of the EC Treaty, that the European Community was liable for the damage caused to it and for an order requiring the European Community to pay damages of DR 102 446 183 with interest calculated at 24% a year from the time of lodgment of the application.
2 The facts found in those proceedings before the Court of First Instance were as follows:
"1 These proceedings arise from a dispute between the Republic of Senegal (hereafter 'Senegal' ) and the Republic of Guinea-Bissau (hereafter 'Guinea-Bissau' ) concerning the exact demarcation of their marine areas. The dispute arises from differing interpretations of a border agreement concluded between the French Republic and the Portuguese Republic in 1960 before those States obtained their independence.
2 In order to resolve the dispute, the two parties agreed in 1985 to submit it to arbitration. An arbitration award was made on 31 July 1989.
3 On 2 August 1989 Guinea-Bissau challenged by written notification the arbitration award and expressed its intention to bring legal proceedings. The Government of Guinea-Bissau also made the following statement: '... Guinea-Bissau, anxious to assert the rights of its people, would for its part establish a strong presence in the region in order to exploit its biological resources without allowing any activity to be an obstacle to such exploitation and its monitoring by the competent authorities' . On 14 August 1989 that statement and the notification of 2 August 1989 were communicated to the Ministries of Foreign Affairs of the Member States, to the Council and to the Commission.
4 Guinea-Bissau then brought the dispute before the International Court of Justice in the Hague (hereafter 'ICJ' ) seeking the adoption of protective measures. The application was dismissed by order of the ICJ of 2 March 1990. By judgment of 12 November 1991 the ICJ upheld the arbitration award. The authorities of Guinea-Bissau then decided to lodge an application on the merits before the ICJ. To the Commission' s knowledge, those proceedings have not yet come to an end.
5 In the meantime, the European Economic Community (hereafter 'the EEC' ) had concluded, on 15 June 1979 an agreement with the Senegalese Government on fishing off the coast of Senegal. That agreement was approved on behalf of the EEC by Council Regulation (EEC) No 2212/80 of 27 June 1980 on the conclusion of the Agreement between the Government of the Republic of Senegal and the European Economic Community on fishing off the coast of Senegal, of the Protocol, and of the exchanges of letters referring thereto (OJ 1980 L 226, p. 16).
6 The purpose of that agreement is defined in Article 1 thereof: to establish the principles and rules which will govern in future, in all respects, the fishing activities of vessels flying the flags of Member States of the Community in the waters over which Senegal has jurisdiction in respect of fisheries. Article 4 of the agreement stipulates that fishing activities by Community vessels in Senegal' s fishing zone are to be subject to the possession of a licence issued at the Community' s request by the authorities of Senegal. Point E of Annex I to the agreement specifies the zones in which licences are to be valid, according to the type of fishing and the type of vessel in question.
7 On 27 February 1980 the EEC also approved a fishing agreement with Guinea-Bissau which was approved by Council Regulation (EEC) No 2213/80 of 27 June 1980 on the conclusion of the Agreement between the Government of the Republic of Guinea-Bissau and the European Economic Community on fishing off the coast of Guinea-Bissau, and of the two exchanges of letters referring thereto (OJ 1980 L 226, p. 33).
8 The agreement with Senegal was amended several times by agreement between the parties. On 4 February 1991 the EEC concluded and the Council approved, by Regulation (EEC) No 420/91 on the conclusion of the Protocol defining, for the period 1 May 1990 to 30 April 1992, the fishing rights and financial compensation provided for in the Agreement between the European Economic Community and the Government of Senegal on fishing off the coast of Senegal (OJ 1991 L 53, p. 1), a Protocol to the agreement with Senegal defining the fishing rights and financial compensation (hereafter 'the Protocol of 4 February 1991' ). The Protocol was applied provisionally following an exchange of letters between the parties.
9 Similarly, on 25 April 1990, the EEC concluded and the Council approved, by Regulation (EEC) No 1235/90 on the conclusion of the Protocol establishing for the period 16 June 1989 to 15 June 1991 the fishing rights and financial compensation provided for in the Agreement between the European Economic Community and the Republic of Guinea-Bissau on fishing off the coast of Guinea-Bissau (OJ 1990 L 125, p. 1), a Protocol to the agreement with Guinea-Bissau defining the fishing rights and financial compensation (hereafter 'the Protocol of 25 April 1990' ).
10 Article 7 of the Protocol of 25 April 1990 repealed the Annex to the agreement concluded with Guinea-Bissau and replaced it with a new annex which, in point K, defines the procedure in case of boarding as follows:
' The authorities of the Commission of the European Communities in Guinea-Bissau shall be notified within 48 hours of any boarding within the Guinea-Bissau fishing zone of a fishing vessel flying the flag of a Member State of the Community and shall at the same time receive a brief report of the circumstances and reasons leading to the boarding.
Should the case be brought before a competent judicial body, the Guinea-Bissau authorities may fix a bank security at the request of the Community or the ship owner.
In that case, the Guinea-Bissau authorities shall undertake to release the vessel within 24 hours following the lodging of the bank security.
The bank security shall be released by the competent authority once the master of the vessel concerned has been acquitted by the judicial decision.
Should one of the parties consider it necessary, it may request urgent consultations under Article 10 of the Agreement.'
11 Against that background, the Guinea-Bissau Embassy in Brussels sent to the Commission, on 11 May 1990 a Note Verbale, No 447/CIJ/90, in order to 'inform it of developments in the maritime region off the coasts of Guinea-Bissau and Senegal' . A fresh incident was reported concerning the boarding by the Senegalese navy, on 11 April, of a Soviet fishing vessel possessing a Guinea-Bissau fishing licence which, according to the embassy, was in waters unarguably under Guinea-Bissau jurisdiction. The note ended with a request that 'the report, which is extremely serious, be brought to the attention of all parties which you consider should be informed ... '. The note was registered at the Commission on 28 May 1990.
12 On 14 May 1990, the fishing vessel 'Theodoros M' , flying the Greek flag and belonging to the applicant, which had left the port of Dakar on 10 May and held a fishing licence granted by the Senegalese authorities, was boarded by a Guinea-Bissau coast-guard vessel in the disputed waters. Having boarded the vessel, the Guinea-Bissau authorities seized and confiscated its cargo, consisting of approximately six tonnes of fish, and its documents. The 'Theodoros M' had obtained the fishing licence from the Senegalese ministry responsible for sea fisheries, in accordance with the provisions in force between Senegal and the Community. The application for a licence had been submitted to the Senegalese authorities through the Commission and the licence had been issued in respect of the applicant' s vessel through the Commission' s delegation at Dakar.
13 The master of the 'Theodoros M' was charged before the People' s Court of Bissau for having fished in waters under Guinea-Bissau sovereignty without holding the necessary licence. By judgment of 28 May 1990 the People' s Court of Bissau upheld that charge and ordered the master to pay a fine of 213 519 000 Guinean pesos. The court found that the master was aware of the existence of a dispute between the two republics concerning the zone in which the vessel was boarded. The vessel was released on 25 July 1990.
14 By telex message of 21 June 1990 the Maritime Fisheries Directorate of the Greek Ministry of Agriculture recommended to the National Cooperative of Deep Sea Fishermen and the Union of Deep Sea Shrimp Fishermen to ask their members 'not to fish in that zone, to which the two countries lay claim, without having first obtained a fishing licence for both the territorial waters of Guinea-Bissau and those of Senegal' ."
3 Those are the circumstances in which, on 6 December 1993, the applicant brought before the Court of First of Instance an action based on the second paragraph of Article 215 of the Treaty in order to obtain compensation for damage suffered owing to acts and omissions of the defendant parties.
The judgment under appeal
4 In support of its action before the Court of First Instance, the appellant put forward four pleas in law: (i) the negotiation and conclusion of the protocols with Guinea-Bissau and Senegal were wrongful; (ii) the Commission failed to inform the appellant of the dispute between Guinea-Bissau and Senegal; (iii) following the boarding of the appellant' s vessel, the Commission failed to consult the Guinea-Bissau authorities pursuant to point K of the Annex to the Protocol of 25 April 1990, and (iv) the Commission failed to request the fixing of a bank security pursuant to that same provision (paragraph 23).
5 That application was dismissed as unfounded by the Court of First Instance in the judgment under appeal.
6 As regards the second plea, that the Commission was liable for failing to inform the appellant of the dispute, the Court of First Instance found, first, that the master of the appellant' s vessel knew about the dispute between Guinea-Bissau and Senegal over the zone in question and about the risks which he ran of being boarded there by one of the two republics, without its being necessary for the Court of its own motion to call the master as a witness (paragraph 69).
7 The Court of First Instance then found that, although the master of the vessel was in fact aware that the zone in question was disputed by the two republics, the boarding of his vessel could be explained only by his deliberate decision to fish there at his own risk or by a navigational error which caused him to fish there without his realizing it (paragraph 70).
8 The Court of First Instance concluded that, in either case, the Commission' s failure to inform the appellant of the dispute between the two States in question did not cause the alleged damage and that, therefore, the alleged damage was not caused by the Commission' s conduct (paragraphs 71 and 72).
The appeal
9 In its appeal, the appellant asks the Court, first, to set aside the judgment under appeal, secondly, to find that, under the second paragraph of Article 215 of the Treaty, the defendant parties are liable for the damage caused to it owing to the wrongful conduct attributable to them and to order the Community to pay compensation in the form of damages in an amount of DR 102 446 183 with interest calculated at 24% a year from the time of lodgment of the application with the Court of First Instance and, finally, to order the defendant parties to pay the costs.
10 In support of its appeal, the appellant makes six pleas: (i) breach of the general principle of procedural law that the burden of proof is on the party which makes a contention or raises an objection; (ii) serious irregularities in the judgment; (iii) lack of reasons; (iv) errors in the assessment of the arguments raised by the appellant at first instance; (v) contradictions in the reasoning of the judgment; and (vi) irregularities in matters of procedure and in relation to the substance of the judgment as regards the Commission' s observance of its duty to maintain diplomatic protection.
11 The Commission and the Council consider that the appeal is wholly unfounded.
12 Under Article 119 of the Rules of Procedure, where an appeal is clearly inadmissible or clearly unfounded, the Court may, by reasoned order, dismiss it at any time without opening the oral procedure.
The first and second parts of the first plea
13 By the first part of its first plea the appellant contends that the Court of First Instance contravened the principle actore non probante reus absolvitur. According to the appellant, the defendant parties maintained that there was no causal link between the alleged breach of the duty to provide information and the alleged damage, arguing that it was clear in particular from the judgment of the Bissau People' s Court that the master of the vessel was aware of the dispute between Guinea-Bissau and Senegal at the time when his vessel was boarded. By putting to the appellant questions concerning the master' s knowledge of the dispute between those two countries and relying only on its answers in concluding that the master did have knowledge, the Court of First Instance reversed the burden of proof.
14 This part of the first plea concerns paragraph 66 of the judgment under appeal, in which the Court of First Instance found in particular:
"With regard to that question, the Council and the Commission contend that it was clear in particular from the judgment of the People' s Court of Bissau that the master knew about the dispute between Guinea-Bissau and Senegal at the time when his vessel was boarded. In its reply, the applicant disputed that contention but without specifically explaining what the master did in fact know. It was for that reason that the Court asked the applicant, by a measure of organization of procedure, to adopt a precise position on the factual findings made by the People' s Court of Bissau relating to what the master knew."
15 It follows that, in taking that approach, the Court of First Instance did not reverse the burden of proof but asked the appellant to adopt a position on the facts found in the judgment of the Bissau People' s Court, which were relied on by the Council and the Commission as evidence that there was no causal link between the omission to inform the appellant of the dispute between the two States in question and the alleged damage.
16 By the second part of the first plea the appellant contends that the Court of First Instance, which still had doubts, ought to have ordered production of additional evidence by the defendant parties which had made the contention concerning what the master knew. In this regard, the appellant points out that, in the document originating the proceedings, it had asked for witnesses to be heard.
17 This second part of the first plea is based on a clear misreading of the judgment under appeal. Paragraphs 66 and 67 of that judgment show, not that the Court of First Instance still had doubts, but that the appellant, asked as a measure of organization of procedure to take a precise position on the factual findings made by the Bissau People' s Court which were relied on by the Council and Commission as evidence proving that there was no causal link, gave an ambiguous reply. Thus, the Court of First Instance found in paragraph 68 of the judgment under appeal that "the applicant has not, in spite of a measure of organization of procedure, explained what its master specifically knew, nor has it called witnesses, such as the master, to controvert the Commission' s assertions even though they related to the applicant' s own case".
18 It should also be borne in mind that, under Article 168a of the EC Treaty, an appeal is confined to points of law and that this limitation is further embodied in the first paragraph of Article 51 of the Statute of the Court of Justice (EC). Thus, the Court has itself held on several occasions that an appeal may rely only on grounds relating to infringements of rules of law, to the exclusion of any appraisal of facts, and is therefore admissible only in so far as the decision of the Court of First Instance is claimed to be incompatible with rules of law the observance of which it had to ensure (see the order of 11 July 1996 in Case C-325/94 P An Taisce and WWF UK v Commission [1996] ECR I-0000, paragraph 28).
19 Thus, in so far as the second part of the first plea concerns the assessment of answers given by the appellant to factual questions put by the Court of First Instance as part of the organization of procedure, it is manifestly inadmissible.
20 Consequently, the first part of the first plea must be dismissed as clearly unfounded and the second part of the first plea must be dismissed as clearly inadmissible.
The third part of the first plea and the second and third pleas
21 By the third part of the first plea the appellant contends that the holding of the Court of First Instance in paragraph 70 of the judgment under appeal, to the effect that "the master of the ... vessel must be considered to have known about the dispute ... and the risks ... of being boarded", was conjectural and ambiguous.
22 By its second plea the appellant contends that the conclusion drawn by the Court of First Instance in paragraph 70 of the judgment under appeal was not categoric. The Court of First Instance did not therefore have the necessary conviction to arrive at that conclusion.
23 By its third plea the appellant contends that, as regards the defendant parties' submission that there was no causal link, the judgment under appeal contains no reasoning at all. It does not clearly and exhaustively set out the various facts and evidence which the Court of First Instance considered to be established and which enable it to be concluded with certainty that the master had knowledge.
24 All those arguments are based on a clear misreading of the judgment under appeal.
25 First of all, in paragraph 65 the Court of First Instance stated that, in order to establish whether liability existed under the second paragraph of Article 215 of the Treaty, it had to be examined whether any breach of the Commission' s duty to provide information was the cause of the damage. It therefore rightly held, in the same paragraph, that if the master of the vessel had known about the dispute at the time when his vessel was boarded, the fact that the Commission had not informed him of the dispute could not have contributed in any way to the causing of the alleged damage.
26 Then, in paragraphs 66 to 68 of the judgment under appeal, the Court of First Instance set out the facts and arguments of the parties to the proceedings relating to what the master of the vessel knew. Those paragraphs show without ambiguity that the appellant' s arguments did not refute those of the defendant parties and that they did not convince the Court of First Instance.
27 Similarly, in paragraphs 69 and 70 of the judgment under appeal, the Court of First Instance left no doubt about its conviction in expressing its clear conclusion about what the master knew and going on to hold that the boarding of the vessel could be explained only by the master' s deliberate decision to fish at his own risk in the zone in question or by a navigational error which caused him to fish there without his realizing it.
28 Finally, the conclusion set out in paragraph 71 of the judgment under appeal, to the effect that, in either case, the Commission' s failure to inform the appellant of the dispute between the two States in question did not cause the alleged damage, is expressed in a categoric, definite way.
29 In those circumstances, the third part of the first plea and the second and third pleas must be dismissed as clearly unfounded.
The fourth plea
30 The fourth plea alleges that the appellant' s arguments as to breach of the principles concerning due care and good administration were misconstrued and distorted.
31 As regards the question of breach of the principle that due care should be taken in the conclusion of international agreements, the appellant states that it did not argue before the Court of First Instance that the Community institutions had to take a position in the dispute in question but that they had either to refrain from concluding agreements or protocols or to exclude the zone in question from the fishing zones dealt with by the agreements concerned.
32 As regards the question of breach of the principle of good administration, the appellant contended before the Court of First Instance that it had not been informed of the risk of boarding either at the time when the fishing licence was forwarded to it or after receipt of the Guinnea-Bissau Embassy' s note verbale of 11 May 1990.
33 So far as the fourth plea asserts that the facts were wrongly assessed by the Court of First Instance, this plea is clearly inadmissible. As regards the allegation that the appellant' s arguments were distorted, it is clear from a comparison of the arguments contained in the application and reproduced in paragraphs 25, 26 and 48 to 61 of the judgment under appeal and from paragraphs 38, 39, 62 and 63 of that judgment that the Court of First Instance did not alter the tenor of the appellant' s arguments.
34 It follows that the fourth plea is in part clearly inadmissible and in part unfounded.
The fifth plea
35 By its fifth plea, the appellant contends that the reasoning of the judgment under appeal is vitiated by various contradictions. In spite of the findings in paragraphs 63 and 64 of the judgment under appeal, the Court of First Instance did not find that the Commission had acted in breach of the principle of the protection of legitimate expectation and the principle of legal certainty, holding that the Commission and the Council had given no assurances concerning the tenor of the agreement (paragraphs 41, 44 and 45).
36 This plea is based on a clear misreading of the judgment under appeal.
37 As regards the alleged breach of the principle of the protection of legitimate expectation and the principle of legal certainty, the Court held, in paragraphs 41 to 45 of the judgment under appeal:
"41 As regards the alleged breach of the principle of protection of legitimate expectations, it is settled law that the right to claim protection of legitimate expectations extends to any individual who is in a situation from which it is clear that, in giving him specific assurances, the Community administration caused him to entertain justified hopes (see, in particular, the judgment of the Court of First Instance in Case T-534/93 Grynberg and Hall v Commission [1994] ECR-SC II-595, paragraph 51, and in Case T-465/93 Consorzio Gruppo di Azione Locale Murgia Messapica v Commission [1994] ECR II-361, paragraph 67). In the present case, however, the applicant has not shown or does not claim that the Council and the Commission had given it precise assurances as regards the content of the fishing agreement concluded between the Community and Senegal and its protocols. Consequently, the Council and the Commission cannot be accused of having acted in disregard of the applicant' s legitimate expectations in concluding that fishing agreement and its protocols.
42 Moreover, on the assumption that the applicant' s argument seeks to demonstrate that, in concluding the fishing agreement in question and its protocols, the Council and the Commission acted in disregard of its legitimate expectation that that agreement and its protocols would be in conformity with the principles of good administration and the exercise of care, that argument is indissociable from the applicant' s arguments relating to breach of those principles.
43 In so far as the applicant' s argument refers to the fishing licence issued to it, the Court finds that this argument is indissociable from the second plea.
44 As regards the principle of legal certainty, it must be observed that the dispute between Guinea-Bissau and Senegal did create some uncertainty for operators fishing in the disputed waters. However, that uncertainty was not attributable to the agreements and protocols which the Community concluded but to a dispute for which the Community is not responsible (see paragraphs 1 to 4 and 37 and 38 of this judgment). In such circumstances, no fault can be found with the Council and the Commission for not having given up the benefits which conclusion of the fishing agreements in question could bring to the Community, especially since Community fishermen were in a position to avoid the damaging consequences of the situation of uncertainty thus created. It was for the master of the vessel to determine precisely his position at sea. If his intention was to fish in the disputed waters, the master had the possibility of applying in advance for a licence from each of the States concerned so as to avoid reprisals by one of them, provided that compliance was shown, if appropriate, for the provisions laid down by the Protocols concluded by the Community on the employment of nationals of the two States in question on his vessel, which, incidentally, played no material part in this case.
45 It must be concluded that, in taking into consideration the advantages of concluding the agreements in question and the possibilities for traders to avoid any drawbacks, the Community did not infringe the principle of legal certainty."
38 Thus, the Court of First Instance considered that, in concluding the fisheries agreement and its protocols, the defendant parties had not failed to observe the principles of protecting legitimate expectation and of legal certainty.
39 After stating, in paragraph 62 of the judgment under appeal, that, in negotiating the agreement and the related protocol and in not excluding the disputed waters from the agreement and the protocol, the Commission had not infringed a superior rule of law for the protection of individuals, the Court of First Instance held, in paragraphs 63 to 65 of the judgment under appeal:
"63 However, the question to be examined is whether, from the administrative point of view, the Commission committed a fault of such a nature for the Community to incur liability by not protecting Community vessels fishing in the disputed zone on the basis of licences issued through the Commission pursuant to agreements concluded by the Community. Fishing licences are in fact applied for on behalf of the shipowner and issued on behalf of Senegal through the intermediary of the Commission (see the Annex to the Protocol of 4 February 1991 concerning the conditions governing fishing activities in Senegal' s fishing zone by vessels flying the flag of a Member State of the Community, point A). The applicant' s licence was therefore issued to it through the intermediary of the Commission Delegation in Senegal. Consequently, contrary to what the Commission contends, its delegation was in a position to attach to each licence which it sent out a note warning the licence holder of the risks of fishing in the disputed zone. In this regard, it cannot object that such a warning could not have been framed without offending the sensitivity of the two States in question. The Commission, as an institution, was in a position to word such a warning in sufficiently neutral and diplomatic terms in order to avoid taking a position in the dispute between those States.
64 Furthermore, if the Commission had considered it inappropriate to attach such notes to licences, it could have asked the Member States themselves to inform the persons concerned of the risks of fishing in the waters in dispute between the two States in question, as in fact was done by the Greek Government after the applicant' s vessel was boarded (see paragraph 14 above).
65 On the assumption that the Commission did in fact infringe a duty to provide information, the question to be examined is whether such an infringement caused damage. If the master of the vessel had known about the dispute at the time when his vessel was boarded, the fact that the Commission had not informed him of the dispute could not have contributed in any way to the causing of the alleged damage."
40 It is clear from those passages that, before ruling on the question whether the Commission had infringed its duty to provide information, the Court of First Instance examined whether there was a causal link between the alleged damage and the supposed infringement. In paragraph 71 of the judgment under appeal, the Court of First Instance concluded that there was no causal link, holding that the omission by the Commission to inform the appellant of the dispute between the two States in question had not caused the alleged damage.
41 There is therefore no contradiction between the reasoning followed by the Court of First Instance as regards the Commission' s liability under the second paragraph of Article 215 of the Treaty and infringement of the general principles of the protection of legitimate expectation and legal certainty.
42 Consequently, this plea is manifestly unfounded.
The sixth plea
43 By its sixth plea, the appellant challenges the finding of the Court of First Instance to the effect that the Commission did not act in breach of its duty to provide diplomatic protection (paragraph 85).
44 As the Court has already pointed out in paragraph 18 of this judgment, under Article 168a of the Treaty and Article 51 of the Statute of the Court of Justice (EC), an appeal may rely only on grounds relating to infringement of rules of law, to the exclusion of any appraisal of facts, and is therefore admissible only in so far as the decision of the Court of First Instance is claimed to be incompatible with rules of law the observance of which it had to ensure. Likewise, Article 112(1)(c) of the Rules of Procedure of the Court of Justice provides that an appeal must contain the pleas in law and legal arguments relied on in support of the form of order sought by the appellant.
45 Thus, the Court has repeatedly held that it follows from those provisions that an appeal must indicate precisely which elements of the contested judgment are challenged, and also the legal arguments which specifically support the appeal. The Court has also held that the abovementioned requirement is not satisfied by pleas in law which are confined to repeating or reproducing word for word the arguments previously submitted to the Court of First Instance, without containing any legal argument in support of the form of order sought in the appeal. In reality, such pleas merely seek to obtain a re-examination of the application and the reply submitted to the Court of First Instance, which is outside the jurisdiction of the Court of Justice (see, in particular, the order in Case C-338/93 P De Hoe v Commission [1994] ECR I-819, paragraphs 17 to 19).
46 It must be held that, in support of its sixth plea in law, the appellant repeats exactly the same arguments which it put forward during the proceedings at first instance, without adducing any new factors.
47 Consequently, the sixth plea in law is clearly inadmissible.
48 It follows from all the foregoing considerations that the pleas in law submitted by the appellant in support of its appeal are clearly inadmissible or clearly unfounded. The appeal must therefore be dismissed pursuant to Article 119 of the Rules of Procedure.
Costs
49 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for. Since the appellant has failed in its pleas, it must be ordered to pay the costs.
On those grounds,
THE COURT (Fourth Chamber)
hereby:
1. Dismisses the appeal;
2. Orders the appellant to pay the costs.
Luxembourg, 28 November 1996.
