C-243/78

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

The President of the Court of Justice of the European Communities

has made the following

ORDER

Facts and Issues

The facts, the procedure and the obser­ June 1968 on the common organization vations of the parties may be summarized of the market in beef and veal (Official as follows: Journal, English Special Edition 1968 (I), p. 187) "A levy shall be charged on 1. Pursuant to Article 13 (1) of Regu­ imports into the Community of frozen lation No 805/68 of the Council of 27 meat".

However, in order to take account of the — Importation under suspension of the needs of the processing industry, levy shall be made conditional on according to Article 14 of the said regu production of an import licence lation as originally worded a special issued for a quantity falling within import system consisting in the total or the limits laid down each quarter partial suspension of the levy was applied (Article 14 (3) (a)). in favour of certain meat intended for — Importation under total suspension of

The which may be imported and the alterations, in so far as they are relevant quantities to which, where necessary, to the present case, were prompted, the "linking" system is applied, as well as detailed rules for the basically, by a slump in prices within the application of that article (Article 14 Community, made worse by massive (4)). imports from third countries, which made it necessary to adjust import (b) The Commission laid down detailed arrangements and, in particular, "certain rules for the application of the new special systems", to avoid a recurrence of similar situations (of the second to the version of Article 14 of Regulation No 805/68 in Regulations Nos 585/77 of 18 fifth recitals of the preamble to Regu March 1977 (Official Journal L 75, p. 5) lation No 425/77).

In the total or partial suspension of the particular, those regulations contain levy (Article 14 (1) (a) and (b) of the provisions concerning the import licence new version of the regulation). for which provision is made in the new — Each year the Council shall draw up version of Article 14 (3) (a) of Regu an estimate of meat which may be lation No 805/68, production of which imported under the arrangements laid is the precondition for suspension of the down in that article (Article 14 (2)). levy.

(c) In Regulation No 2900/77 of 22 transmitted to it by the intervention December 1977 (Official Journal L 338, agencies, the Commission fixes p. 6), the Commission exercised with minimum selling prices. If the price effect from 1 January 1978 the power, offered is less than the minimum provided at Article 14 (3) (b) of Regu­ price, it is refused. Successful lation No 805/68 in its new form, to tenderers are those offering the have recourse to the "linking" system, highest price. making importation with total suspension — Offers must be made for a total of the levy conditional upon "the quantity of not less than five tonnes submission of a purchase contract for and not more than an hundred frozen meat held by an intervention tonnes (Article 3 (4) of Regulation agency, concluded in accordance with No 2900/77). this regulation" (Article 1 of Regulation No 2900/77). The various aspects of the — The intervention agencies issue rules in force as from 1 January 1978 partial invitations to tender every may be summarized as follows: quarter, for which tenders may be submitted only during the first ten — For importation of the meat in days of each quarter (Articles 2 (2) question, an import licence is and 3 (1) of Regulation No 2900/­ required. A licence may be issued to 77). any "natural or legal person who for at least 12 months has been carrying — Following the decision of the on business in the meat and livestock Commission fixing minimum selling sector ... in a Member State" prices, the intervention agencies inform tenderers of the decision on (Article 11a 2 (a) of Regulation No 585/77, in the version contained in their tenders and conclude purchase contracts with successful tenderers. Regulation No 2901/77, and Article 12 (2) (a) of Regulation No 571/78). (d) On the basis of the above­ — The application for a licence must be mentioned rules, the Commission accompanied by the original of a published in the Official Journal C 11 of purchase contract for frozen meat 13 January 1978, p. 16, a "general notice held by an intervention agency, of periodic invitations to tender for the drawn up in accordance with Regu­ sale of frozen beef held by the lation No 2900/77 during the quarter intervention agencies to enable the in which the application is made import with total suspension of the levy (Article 11a (1) (a) of Regulation No of frozen beef and veal intended for 585/77, in the version contained in processing". Regulation No 2901/77, and Article 12 (1) (a) of Regulation No 571/78). 3. (a) On page 34 of the Official — The sale of frozen meat held by an Journal C 11 of 13 January 1978 there intervention agency shall take place was published the "notice of invitation to by way of invitation to tender, tender No It P 1 — Regulation (EEC) pursuant to Regulation No 216/69 of No 2900/77 — for the sale of certain the Commission of 4 February 1969 frozen unboned (bone-in) beef held in (Official Journal, English Special stock by the Italian intervention agency" Edition 1969 (I), p. 31), subject to for the first quarter of 1978, pursuant to the special provisions laid down in which the said intervention agency was Regulation No 2900/77 (Article 1 (2) to sell some 4 000 tonnes of beef and of Regulation No 2900/77). veal.

preserved food of the corned beef type — As regards Regulations Nos 2900/77 and which might be imported with total and 2901/77, there was a breach of suspension of the levy at 5 027 tonnes. the principles behind the special Pursuant to that decision the Italian import system for frozen meat intervention agency informed the intended for processing, misuse of applicant that its tender had been powers and a breach of the principle rejected because it was lower than the of proportionality; minimum price fixed by the Commission. — As regards Regulation No 2900/77, and in particular Articles 3 and 5, 4. (a) On 13 April 1978 the applicant there was a breach of the prohibition brought an action (Case 92/78) against of discrimination between traders; Decision 78/258 of the Commission. In — As regards Regulation No 2900/77, that action it is demanding that the and in particular Article 4, and the Court should declare null, void or inap­ general notice of invitations to plicable, within the meaning of Article tender, and in particular point 4, 184 of the EEC Treaty, Regulation No there was a breach of the principle of 585/77, and in particular Articles 11 and the impartiality of the public 11a, Regulation No 2900/77 and Regu­ administration. lation No 2901/77, especially as regards the total suspension of the levy in the The Commission has denied that the framework of the special import system submissions upon which the applicant for frozen beef and veal, as well as the relies have any foundation and has general notice of invitations to tender challenged the admissibility of the published in the Official Journal, C 11 of application. With regard to admissibility 13 January, and the notice of invitation the Commission has claimed that the to tender No It P 1. applicant does not have a legitimate The applicant is of the opinion that the interest in bringing the action: even if the Commission fixed at too low a level the contested decision were annulled the quantities which might be imported with applicant could not derive any advantage suspension of the levy and that by way therefrom since the contracts have of the detailed rules it in fact excluded already been concluded and the import the applicant from the advantage of the licences issued. To annul the decision special system, thereby causing it would not necessarily mean that the

applicant would be granted what it By order of 22 May 1978 of the desires and even less that third parties President of the Court that application should be deprived of what they have was dismissed. obtained pursuant to the invitation to As regards the first head of claim, the tender. President held as follows: "Even In connexion with that case the assuming for the sake of argument that Government of the Italian Republic has that statement is correct, it should be intervened in support of the applicant's emphasized that the decision in dispute is conclusions. addressed to all the Member States and it may be presumed that within the The Court has not yet ruled on that Community as a whole the majority of application. the said licences have already been issued, so that from this point of view (b) On the same date, that is 13 April the effectiveness of the decision in 1978, the applicant submitted to the dispute has been exhausted and it can Court pursuant to Articles 185. and 186 therefore no longer be the subject- of the EEC Treaty and Article 83 (1) of matter of a suspensory measure. the Rules of Procedure, an application, Moreover, to restrict the application of designated 92/78 R, requesting that: the measure sought to licences which — The effectiveness of Decision No have not yet been issued would amount 78/258 be suspended and that the to depriving those concerned of a right Commission be ordered to instruct conferred upon them by the Community the national authorities to suspend rules in force. the issue of import licences Even if it is accepted that the Court is corresponding to the contracts of empowered to adopt an interim measure purchase entered into by successful having so serious an effect on the rights tenderers with the intervention

"It follows In support of its application the applicant that the measure sought might have claimed that the system created by the serious consequences on the market in Commission would lead to the exclusion beef and veal and adversely affect the interests of an incalculable number of of the applicant from the benefits of the special import system and the assignment agricultural producers and traders. of those benefits to traders who have The scope and possible consequences of nothing to do with the processing such a measure would render it out of all industry.

ORDER OF 29. 11. 1978 — CASE 243/78 R

tender No It P 4 — Regulation (EEC) (a) The effectiveness of the Com­ No 2900/77 — for the sale of frozen mission's decision of 27 October boned beef held in stock by the Italian 1978, limited, as appropriate, to the intervention agency" for the fourth results of the notice of invitation to quarter of 1978, according to which that tender No It P 4, be suspended, and intervention agency was to sell some that the Commission be ordered to 4 019 tonnes of beef and veal. give the necessary instructions to the The applicant submitted a tender in Italian authorities to suspend the response to that invitation. conclusion of contracts of purchase with successful tenderers and the

SIMMENTHAL v COMMISSION

parties. the event of a suspension of its effectiveness, there would be no fear A decision granting the application of serious consequences in relation to would, moreover, be devoid of any the rights and interests of tenderers; useful effect as far as the applicant is concerned. It would not entitle it to — The effects of the measure requested are limited and there would be no acceptance of its offer on the terms risk of serious disturbance on the which it proposed. A fresh invitation to tender, which would be the automatic market in meat; consequence thereof, would lead to the — The injury suffered by the applicant same outcome with regard to the has in the meanwhile become more applicant, whose offer was derisory.

1979. The applicant's only interest in this connexion is the financial interest represented by the importation of 100 7. In its observations submitted on 16 tonnes of meat free of levy, since import November 1978 the Commission ation otherwise than free of levy is contended that the application should be always possible. The measures requested dismissed. It stated, inter alia: are out of all proportion to that interest. Moreover, the latter would not be irre (a) As regards point (a) of the application. versibly affected if the Court did not grant the suspensory measures requested, Although the application for suspensory since the financial advantage could be measures was submitted rapidly, a good made good by way of damages. many import licences in the various Member States have already been issued. In order to safeguard the financial Any limitation of the measures to advantage in question it would have been

2 Pursuant to Article 1 that decision, the annulment of which is sought by the applicant in its principal action, fixes the minimum prices for frozen beef stored by the intervention agencies which were to be adopted for adjudi­ cating the invitation to tender held in accordance with Regulation (EEC) No 2900/77 for the final quarter of 1978.

3 Article 2 fixes, for the period 1 October to 31 December 1978, the maximum quantities of meat intended for the processing industry to be accepted for importation with total suspension of the levy.

SIMMENTHAL v COMMISSION

4 The decision in question not only concerns the interests of the applicant but also impinges upon the interests of all third parties who submitted offers in connexion with the invitation to tender in question.

5 The suspension of the effectiveness of the decision, even if it were limited to the results of invitation to tender No It P 4, would amount, at least temporarily, to depriving other tenderers, who are not parties to the dispute and have not been heard, of the benefit of concluding a contract for the purchase of frozen meat stored by the Italian intervention agency and of being issued with an import licence which they are entitled to demand pursuant to the rules in force.

6 Even if it is accepted that the Court is empowered to adopt, in the context of an urgent procedure and on an interim basis, a measure having so serious an effect on the rights and interests of third parties, that course of action could be justified only if it appeared that, in the absence of such measure, the applicant would be exposed to a situation which threatened its very existence.

The second head of claim

12 The second head of claim of the application seeks the suspension, until pub­ lication of the final judgment in Case 92/78, of the application of the special arrangements for the importation of frozen meat intended for the processing industry for 1979.

13 That request must be understood as referring to the complex of regulations adopted by the Commission in implementation of the "linking" system provided for in Article 14 (3) (b) of Regulation No 805/68 in the version amended by Council Regulation No 425/77.

14 The applicant requests that the effectiveness of those rules be suspended prov­ isionally and that the Commission should refrain from adopting implementing measures based on those rules, with effect for the whole Community.

15 In adopting the rules in question the Commission exercised powers given to it by the Council under the terms of the said Article 14 in order to avoid the occurrence of disturbances on the market in beef and veal.

16 Suspension of application of the rules in question would have serious effects on the market in question and would adversely affect the interests of an incalculable number of agricultural producers and traders throughout the Community.

The President,

by way of interlocutory decision,

hereby orders as follows:

1. The application for interim measures is dismissed;

2. Costs are reserved.

Luxembourg, 29 November 1978.