C-92/78

ORDER OF THE PRESIDENT OF THE COURT OF 22 MAY 1978 1

Simmenthal S.pA. v Commission of the European Communities

Case 92/78 R

In Case 92/78 R

Simmenthal S.pA., having its registered office in Aprilia (Italy), represented and assisted by Emilio Cappelli and Paolo de Caterini, Advocates of the Rome Bar, with an address for service in Luxembourg at the Chambers of Charles Turk, 4 Rue Nicolas Welter, applicant, v

Commission of the European Communities, represented by its Legal Adviser, Peter Kalbe, acting as Agent, assisted by Guido Berardis, a member of the Legal Department, with an address for service in Luxembourg at the office of Mario Cervino, Legal Adviser to the Commission, Jean Monnet Building, Kirchberg, defendant,

ORDER OF 22. 5. 1978 — CASE 92/78 R

805/68. In substance, the amendments, following, inter alia, in its present in so far as they are relevant to the wording: present case, were prompted by the fact — In order to qualify for the said total that, in view of the collapse of prices suspension of the levy, "the which had occurred within the application for a licence or licences Community as a result of massive lodged by any one applicant shall imports from third countries, it had relate to a quantity corresponding to become necessary to adjust the import not less than five tonnes of bone-in arrangements, and in particular "certain meat and not more than 10 % of the special systems", in order to avoid a quantity fixed" by the Commission recurrence of similar situations (cf. the pursuant to the new Article 14 of second to the fifth recitals of the Regulation No 805/68, "for the preamble to Regulation No 425/77). quarter during which the application Accordingly, that regulation provides, in for a licence is lodged" (Article 9 (1) particular, that: (a) of Regulation No 585/77). — Meat intended for the manufacture — In order to be eligible for of beef and jelly preserves now also consideration applications must, benefits from the total suspension of inter alia, be submitted by "a natural the levy only "under the conditions or legal person who for at least 12 laid down in this article" (Article 14 months has been carrying on (1) (a) of the new version of the business in the meat and livestock regulation); sector and is officially registered in a — Importation under total suspension Member State" (Article 11a (2) (a)). of the levy "shall be made

intervention agency, concluded in lation). accordance with this regulation".

— Under Article 1 (2) the sale shall 2901/77 the Commission published, in take place by way of tender, the Official Journal C 11 of 13 January pursuant to Regulation No 216/69 1978, at page 16, a "general notice of of the Commission of 4 February periodic invitations to tender for the 1969 (Official Journal, English sale of frozen beef held by the Special Edition 1969 (I), p. 31), intervention agencies to enable the subject to the derogating provisions import with total suspension of the levy laid down in Regulation No of frozen beef and veal intended for 2900/77. processing". Regulation No 216/69 concerning The same edition of the Official Journal "the disposal of frozen beef and veal contains, at page 34, the "notice of bought in by intervenuon agencies" invitation to tender No It P 1 — Regu­ provides for invitations to tender as lation (EEC) No 2900/77 — for the one of the methods of determining sale of certain frozen unboned selling prices and lays down detailed (bone-in) beef held in stock by the rules therefor; minimum selling Italian intervention agency". Pursuant prices are fixed by the Commission; to that notice the said intervention if the tender is for less than the agency "shall sell approximately 4 000 minimum price it shall be refused; tonnes of frozen unboned beef, and successful tenderers are those who more particularly "in accordance with offer the highest prices, it being the rules laid down [in the above­ understood that when several mentioned general notice]"; "only tenders at the same price are tenders which reach [the Italian received for the same quantity, the intervention agency] on 30 January intervenuon agency shall divide the 1978 at the latest shall be considered". quantity available or award it by balloting. (e) On 15 February 1978 the Com­ — The intervenuon agencies shall issue mission adopted Decision 78/258/EEC partial invitations to tender every (Official Journal L 69, p. 36), addressed quarter "under the tendering to all the Member States and founded, system"; a general notice of in particular, on the new Article 14 of invitation to tender shall be Regulation No 805/68, as well as on published at the latest on the date of Regulations Nos 216/69, 585/77, publication of the first partial 2900/77 and 2901/77: invitation to tender (Article 2 (1) — Pursuant to Article 1 (1) and the and the first subparagraph of Article annex, that decision fixed "the 2 (2)). minimum selling prices for frozen — 'Tenders may be submitted only beef stored by the intervention during the first 10 days of each agencies which are to be adopted for quarter. However, on the first the invitation to tender held in occasion, they may be submitted accordance with Regulation (EEC) only between 20 and 30 January No 2900/77, for which the time­ 1978" (Article 3(1)). limit for submitting tenders was 30 — "Only tenders for a total quantity of January 1978", that is to say for the not less than five tonnes and not first quarterly invitation to tender more than 10 tonnes ... can be held in 1978 (see Articles 2 and 3 (1) accepted" (Article 3 (4)). of Regulation No 2900/77). — Article 2 of the decision fixed, "for (d) Pursuant in particular to its own the period 1 January to 31 March Regulations Nos 216/69, 2900/77 and 1978", at 5 027 tonnes the maximum

quantities of meat intended for the of Regulation No 805/68 subjected manufacture of beef and jelly the industrial sector to which the preserves accepted for importation applicant belongs to a less liberal with total suspension of the levy. system in that it enables the Com­ munity authorities wholly to control 2. By an application against the Com­ imports of frozen meat, permitting mission, lodged at the Registry of the them, in particular, to fix the Court on 13 April 1978, to which maximum quantities which may be successive amendments have been made imported with suspension of the levy by way of a "corrigendum", the and to render that suspension applicant claims, in substance, that the conditional upon the submission of a Court should "declare null, void or contract for the purchase of meat inapplicable, within the meaning of held by an intervention agency (the Articles 173 and 184 of the EEC so-called "linking" system). Treaty", the following measures: 2. However, the new system could — Decision 78/258; have functioned satisfactorily if the Commission had exercised the — The general notice of invitations to tender referred to above at 1 (d); powers attributed to it by the Council in a reasonable and correct — Notice of invitation to tender No manner. The contested measures and It P 1; the effects produced thereby show, — Regulation No 585/77, and in however, that such has not been the case: particular Articles 11 and 11a; — The Commission has fixed at too — Regulation No 2900/77; low a level the quantities which — Regulation No 2901/77, "especially could be imported with as regards the total suspension of suspension of the levy. the levy in the framework of the special import system for frozen beef — It has decided to operate the and veal". "linking" system, laying down detailed rules which are open to criticism: In support of that action, the applicant submits inter alia the following: — In the first place, it allows an excessive number of interested 1. The system instituted by the Council parties to participate in the is based on the desire to ensure procedure for sale by tender. sufficient supplies for Community Genuine processors are there­ producers of preserves. That fore placed in competition industry, precisely because of the with a practically infinite establishment of the common organi­ number of traders who are zation of the market in beef and thus enabled subsequently to veal, in fact came to find itself, sell to processors, on parti­ objectively, in a position of cularly favourable terms to inferiority in relation to its extra- themselves, the meat imported Community competitors, for whom free of the levy. the world market offers very — Moreover, the Commission extensive possibilities for obtaining has limited all individual supplies. offers made in response to the The modification of the said system invitations to tender to a pursuant to the amendments made by maximum quantity of 100 Regulation No 425/77 to Article 14 tonnes and, moreover, has

qualitative characteristics of agencies;" its products it is obliged to 2. "The application of the special obtain its meat largely by way arrangements for the importation of of imports from third frozen meat intended for the countries. processing industry be suspended — For the second, third and until publication of the final fourth quarters of 1977 it was judgment." granted import licences for In support of the application for the completely insignificant quan­ adoption of interim measures the tities (12, 12 and 5.8 tonnes, applicant maintains inter alia as follows, respectively). In the first invitation to tender of 1978 while also referring to the principal application: its tender was quite simply For the reasons set out in the refused because the price offered was lower than the application the applicant has suffered minimum price fixed by the very serious damage, which is likely to Commission. recur in a more serious form in the future; even if a favourable judgment is — In consequence, in order to given on the principal application that obtain at least part of its damage could not be made good. supplies on the external Indeed, if the interim measures market, the applicant "has requested are not taken, and even if the been obliged to undertake Court settles the dispute with dispatch, humiliating and onerous then in all probability it will be negotiations in order to impossible to avoid the Commission's acquire those quantities which inviting tenders for the quantities of had been obtained by the meat to be imported during the second multitude of importers who and third quarters of 1978, with the are not processors, for whom result that the said quantities will, as in the irrational management of the past, be diverted to traders other the special import arrange­ than industrial processors. ments by the Community auth­ orities has provided the oppor­ (b) In the observations which it lodged tunity for parasitic profit- at the Registry on 24 April 1978 the margins which are as unhoped Commission contends that the request for as they are unjustified". for the adoption of interim measures

should be dismissed and that the costs of the applicant the latter could seek should be reserved. In support of its reparation for any damage suffered. submissions the Commission adduces the following arguments: The measures sought, both in the main action and in the present procedure, are 1. The first head of claim out of all proportion to the benefit in view. In order to obtain exemption for It is impossible to deprive Decision the importation of a necessarily limited 78/258 of all legal effect two months quantity, the applicant is demanding the after its adoption. Requests for the issue annulment of sales of intervention meat of licences had to be submitted in the throughout the Community and the course of the quarter in which the withdrawal of import licences from their corresponding contract of purchase was holders relating to the equivalent of entered into, that is, in the case in nearly 13 000 tonnes. point, before 31 March 1978. Requests corresponding to the contracts con On the other hand, even on the cluded in that quarter were therefore assumption that the disputed decision is submitted some while ago and the annulled, it would not follow that the relevant licences were issued applicant is therefore entitled to obtain immediately pursuant to the provisions as much meat as it wishes, at a price of Article 11a (6) of Regulation No convenient to it.

2. The second head of claim ticipate in invitations to tender on the conditions laid down by the Community rules. On the occasion of the last The applicant is attempting to obtain by invitation to tender its tender was not way of an interim measure the result accepted for the simple reason that it which it seeks in its principal appli was not high enough. Thus the interest cation. According to the Commission, which the applicant is claiming in the therefore, that application is inadmissible for the reasons which it case in question merely consists in not sets out in detail.

SIMMENTHAL v COMMISSION

and, more especially, would not obtain (c) The parties submitted oral obser­ the right to import meat in future vations before the President of the exempt from the levy. Court on 8 May 1978.

Decision

The first head of claim

1 The first head of claim of the application requests the suspension, "in so far as possible", of the effectiveness of Commission Decision 78/258, in the sense that that suspension should be ordered on an interim basis and that "the Commission be ordered to instruct the national authorities to suspend the issue of import licences corresponding to the contracts of purchase entered into by successful tenderers with the intervention agencies".

2 Pursuant to Article 1, that decision fixes the minimum prices to be applied in relation to meat "for the invitation to tender held in accordance with Regulation (EEC) 2900/77, for which the time-limit for submitting tenders was 30 January 1978".

8 Moreover, to restrict the application of the measure sought to licences which have not yet been issued would amount to depriving those concerned of a right conferred upon them by the Community rules in force.

9 Even if it is accepted that the Court is empowered to adopt an interim measure having so serious an effect on the rights and interests of third parties, who are not parties to the dispute and have not therefore been able to express their views, such a measure could however only be justified if, in its absence, the applicant would be exposed to a situation which threatened its very existence.

to No such situation exists in the case in point and the first head of claim must therefore be dismissed.

The second head of claim

ii Under its second head the application requests the suspension, "until pub­ lication of the final judgment", of "the application of the special arrangements for the importation of frozen meat intended for the processing industry".

12 That request must be understood as referring in essence to the complex of regulations adopted by the Commission in implementation of Article 14 of Regulation No 805/68 in its amended version as referred to in Council Regulation No 425/77, in so far as the applicant has disputed those regu­ lations in its principal application.

18 It follows that the measure sought might have serious consequences on the market in beef and veal and adversely affect the interests of an incalculable number of agricultural producers and traders.

19 The scope and possible consequences of such a measure would render it out of all proportion to the individual interest which the applicant wishes to safeguard.

20 During the hearing the applicant intimated that it might be satisfied with interim measures of a less incisive character than those requested by it in its application.

21 However, it put forward no precise submissions on this matter.

22 In view of all these facts the second head of claim in the application must also be dismissed.

ORDER OF 22. 5. 1978 — CASE 92/78 R

2. Costs are reserved.

Luxembourg, 22 May 1978.

A. Van Houtte H. Kutscher

Registrar President