C-44/75
ECLI:EU:C:1975:72
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- 61975CO0044
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ORDER OF THE PRESIDENT OF THE COURT
OF 28 MAY 1975 1
Firma Karl Könecke
v Commission of the European Communities
Case 44/75 R
In Case 44/75 R
FIRMA KARL KÖNECKE , 28 Bremen 44, Zum Sebaldsbrücker Bahnhof 1, re
presented by its Manager, Karl Konecke, assisted by Messrs. Modest and
Partners, Advocates of Hamburg, applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES , represented by its Legal Adviser, Peter Kalbe, defendant,
THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
makes the following ORDER
Facts
By various contracts made between 30 of meat should therefore be processed by December 1974 and 6 March 1975, 1 or 10 June 1975. However, since the
Firma Karl Könecke undertook to imported meat was not packed in import before 7 March 1975 from Brazil compliance with the requirements of
via Rotterdam — where they are at Regulations Nos 610/75, 888/75 and present in cold storage — various 1090/75 of the Commission, these
quantities of cooked or cured meat consignments have remained in storage
intended to be processed into finished in Rotterdam. products in the firm's factories. On 6 1975 May the applicant
On 3 March 1975 the Federal Minister commenced an action challenging the
for Youth, the Family and Health legality of these regulations in so far as granted an authorization to import on they suspend free circulation within the
condition that the processing should Community of products such as those take place within three months from the imported, or make such circulation
date of manufacture of the semi-finished subject to the production of import product imported. In view of the date of licences, when — as in the present case
manufacture, the various consignments — a purchase contract in respect of
1 — Language of the Case: German.
ORDER OF 28. 5. 1975 — CASE 44/75 R
these products was made before 7 March subject to the production of import 1975 and they were loaded before 30 licences when a purchase contract in March 1975 with a view to their respect of these products was made
transportation to the Community. before 7 March 1975 and either these
products were paid for before 7 By a separate document lodged on 20 March 1975 or the importer made May 1975 the applicant submitted, out irrevocable letters of credit in under Articles 185 and 186 of the EEC favour of the vendor before 7 March Treaty and Article 83 et seq. of the Rules 1975 and these products were loaded of Procedure of the Court, an before 30 March 1975 with a view to application that the Judge responsible their transportation to the Com for interim measures should: munity.
'1. Suspend the operation of Article 1 of 3. As a subsidiary alternative, order the EEC Regulation No 1090/75 of the defendant to authorize the applicant Commission of 23 April 1975 (OJ L to put into free circulation in the 108, p. 1) in so far as that measure Community without production of
makes the free circulation (in the import licences 46 618 kg net of
Community) of products falling cooked and frozen beef and veal in under sub-heading 16.02 B III b of 7 containers weighing more than kg the Common Customs Tariff and 264 377 net and kg net of prepared
originating in third countries, viz. or preserved beef and veal in
(a) prepared or preserved beef and containers weighing more than 5 kg veal in containers weighing more net, being products falling within
5 kg net: sub-heading 16.02 B III b 1 of the than Common Customs Tariff and
(b) cooked and frozen beef and veal in third countries in originating in containers weighing more than respect of which a sales contract was
7 kg net, made before 7 March 1975 and
subject to the production of import which were loaded before 30 March in 1975 with a view to their licences, when a sales contract transportation to the Community. respect of these products was made
before 7 March 1975 with a view to 4. Alternatively in relation to point 3, their transportation to the Com order the defendant to authorize the munity. applicant to put into free circulation
in the Community without pro
2. Alternatively, suspend the operation duction of import licences the goods of Article 1 of EEC Regulation No mentioned under point 3 in so far as 1090/75 of the Commission of 23 the applicant has before 7 March April 1975 (OJ L 108, p. 1) in so far 1975 made out an irrevocable letter as that measure makes the free in favour vendor.’
of credit of the circulation (in the Community) of The applicant's chief contention is that products falling within sub-headings
16.02 B III b1 Common the principles of legal certainty and of of the
Customs Tariff and in legitimate expectation are violated by the originating fact that the regulations in dispute, third countries, viz. published on 8 March 1975, came into (a) prepared or preserved beef and force on 15 March 1975, whereas prior veal in containers weighing more to their adoption the importation of the than 5 kg net; relevant products was authorized
without any restriction. (b) cooked and frozen beef and veal
in containers weighing more than The applicant further contends that the
7 kg net, matter is urgent, since any decision in
KONECKE v COMMISSION
the main action can only be too late and which it is seeking by its action for very substantial damage — such as to annulment. The interim measure would
give rise to a possible action under prejudge the decision on the substance
Article 215 of the EEC Treaty — is and would confer on the applicant a
inevitable. In the case of the cured benefit which it could not obtain in view meat the urgency arises from the of the fact that the application in the
closeness of the dates already mentioned. main action is inadmissible in that it is For the cooked meat, although the concerned with regulations of general
period for processing has not been laid scope and does not concern the
down by the authorities, the situation is applicant directly or individually. The in fact the same. Moreover, the re application for interim measures does exportation of the meat is impossible, not claim any real interim or
since the semi-finished products conservation measures but rather the
imported correspond to particular actual placing of the goods in free requirement of the applicant's business. circulation, i.e. the definitive and
The applicant has consequently, and in irrevocable import — in defiance of the
view of the urgency, requested the Judge safeguard measures — of a product
responsible for interim measures to grant intended for immediate processing. The its request before the defendant has applicant, just like certain of its presented its observations. competitors who were more prescient,
the Commission was invited ought to have known of the preparation However, to reply promptly, which it did by a of the measures restricting imports, and
lodged 26 this fact weakens the force of its appeal statement at the Registry on
to the principle of the protection of May 1975. legitimate expectation. It contended that the Judge responsible
for interim measures should: Secondly, the Commission contends that 'Dismiss the application submitted by urgent measures are not indispensable in the applicant dated 16 May 1975, which order to safeguard the applicant
reached the Commission on 21 May provisionally against irreparable damage. 1975, seeking a suspension of operation It is possible to store cooked and frozen of Regulation (EEC) No 1090/75 and an meat. Regulation No 1090/75 permits its interim order to this effect ; importation on certain precise condi
Order the applicant to bear the costs. tions. It is possible for it to be processed from in the context of inward processing. The The Commission refrained cured meat could have been processed questioning the admissibility of the
for interim and the abroad or in a free port and then application measures
facts imported for sale to pork butchers. It account of the given by the
It explains could have been processed in the applicant. the necessity of the
regulations by the situation on the meat applicant's plant by way of inward processing. market and by the fact that importers have circumvented the import prohibi Finally, the Commission contends that tions by resorting to semi-finished there are no indications to suggest that products not covered by earlier the definitive importation requested for regulations. It recalls that a period of a the products in question is of the week was granted for importations slightest urgency. The warehousing already under way before the entry into facilities, the methods of importation force of Regulation No 610/75. offered by Regulation No 1090/75 and The Commission points out, first of all, the possibilities of processing already that by obtaining the definitive described refute any suggestion of
authorization to import which it is urgency. Although the processing of the
requesting, the applicant would obtain in cured meat is urgent, this can be done by an irrevocable manner the legal benefit way of inward processing, which would
ORDER OF 28. 5. 1975 — CASE 44/75 R
have the advantage of not importing it have considered adopting the alternative
and thus avoiding an a priori decision on solutions already mentioned to escape
the question of the validity of Regulation from its difficulties. No 1090/75. Since the beginning of
March the applicant has had no reason The parties, duly summoned, appeared to rely on any exception being made at the hearing on 28 May 1975 and from the safeguard measures or on the replied to the questions of the Judge abrogation of those measures, and could responsible for interim measures.
Law
1 The application for the adoption of interim measures seeks substantially the
suspension of operation of regulations, and alternatively an order to the
Commission to authorize the placing of the disputed goods in free circulation despite the provisions of those regulations.
These two applications constitute respectively a request that 'application of
be Article 185 suspended'
the contested act within the meaning of of the
EEC Treaty and the first paragraph of Article 83 (1) of the Rules of Proce dure and a request for 'necessary interim measures'
within the meaning of
Article 186 of the EEC Treaty and the second paragraph of Article 83 (1) of the Rules of Procedure.
2 The Judge responsible for interim measures cannot —
save in exceptional
circumstances making it possible to single out the applicant from other
persons subject to the law — consider the effect of a general provision as
amounting to that of a measure within the meaning of Article 83 (1) of the
Rules of Procedure. If it were otherwise, proceedings based on Article 185 would make it possible to obtain de facto the result sought by the main
action, while the outcome of the latter remains, as in the present case, doubtful.
3 An application for the adoption of interim measures, when it may have the
effect of stultifying a series of regulations, presupposes that the applicant must
prove in a particularly clear fashion that he is concerned directly and indi vidually. It is also necessary to take into account the public interest and the
impact of such an interim measure on administrative action, especially when, as in the present case, safeguard measures are involved.
KONECKE v COMMISSION
As regards the dangers of deterioration of the goods, the applicant has not
shown that it is impossible to have recourse to the methods of inward
processing or of processing of the imported products or to any other method
of avoiding or mitigating possible damage.
The fact that apart from simple administrative representations the applicant
has taken no practical steps in this connexion, when it was, at least since
8 March, informed of the state of the regulations, cannot be compensated
for by a decision of the Judge responsible for interim measures.
4 Finally, it is not possible to order by means of this procedure a measure of importation which, far from being of a provisional character, would in reality be irrevocable and would confront the Judges responsible for the
substantive decision with an irreversible situation.
5 In it is the present state of the proceedings appropriate to reserve the costs.
On those grounds,
as an interim ruling,
THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
orders:
1. The application for the adoption of interim measures is dismissed.
2. Costs are reserved.
Done and ordered in Luxembourg on 28 May 1975.
A. Van Houtte R. Lecourt
Registrar President