C-809/79

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Richard Wainwright, 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,

APPLICATION for the adoption of interim measures,

T H E PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

makes the following I — Language of the Case: Iulian.

ORDER OF 17. !. 1980 — CASE 809/79 R

The applicant then applied to the Italian Ministry for External Trade for 1. On 14 June 1979 the applicant, permission to carry out the exports with Fratelli Pardini S.p.A., which is one of fresh licences. The Ministry in turn the largest European undertakings in the applied to the Commission for the cereal sector and which has its registered necessary instructions. The Commission office in Lucca, applied to the Italian agreed that the Ministry should Ministry for External Trade, in authorize Pardini to proceed with the accordance with Regulation (EEC) No exports for the food aid, but it did not 193/75 of the Commission of 17 January agree that the applicant should be auth- 1975 laying down common detailed rules orized to proceed with the normal export for the application of the system of of 12 500 tonnes of durum wheat meal import and export licences and advance with a fresh licence. In this respect it fixing certificates for agricultural cited the provisions of Article 17 (7) of products (Official Journal L 25 of Regulation No 193/75, which is worded 31 January 1975) to issue it with an as follows: "export licence or advance fixing certi- ficate" in respect of 12 500 tonnes of durum wheat meal which the applicant intended to produce and export. The "Where a licence or certificate or extract licence, numbered 501341/5495, was therefrom is lost, issuing agencies may, issued on the same day. It was valid until exceptionally, supply the party concerned 31 October 1979. The refund was fixed with a duplicate thereof, drawn up and in advance at the rate applicable on 14 endorsed in the same way as the original June 1979, that is 171 817.20 lire, document and clearly marked with the equivalent to 180 European units of word 'Duplicate' on each copy. account, per tonne and the deposit was fixed at 144 250 000 lire. Duplicates may not be submitted for purposes of carrying out import or export operations." On 22 August 1979, according to the applicant, one of its representatives was the victim in Rome of the theft of a On 27 August 1979 the Italian Ministry number of export licences for flour and issued fresh export licences relating to meal issued in the name of the licensee the food aid, valid until 31 December by the competent Italian agency. The 1979, but it did not issue a fresh export stolen licences included, on the one licence for the said 12 500 tonnes of hand, licences granted for the purpose of durum wheat meal.

" 1 . Must the first and second subpara- In support of its application the applicant graph of Article 17 (7) of Regulation stated that the refusal by the Italian No 193/75 be interpreted as Ministry to issue it with a "duplicate" of meaning that an exporter who has the stolen licence meant that it had to suffered the theft of an' export apply for another export licence for the licence, valid throughout the 12 500 tonnes of meal and a further Community, fixing in advance the serious consequence would be that it amount of the refunds, may not could no longer have the benefit of the request and obtain a new licence or previous refund fixed in advance but equivalent document issued by a would obtain a much lower refund. In national authority permitting him to point of fact the damage which it would carry out the export operations

ORDER OF 17. 1. 1980 — CASE 809/79 R

(c) On 22 November 1979 the appli- cant applied to the Pretore di Lucca The applicant stated in this respect that under Article 700 of the Italian Code of the Italian Government had taken the Civil Procedure for a mandatory view that it did not have to obey that injunction against the appropriate Italian order because Community law had Ministries for the issue to it, subject to precedence. In the event the licence had the giving of the necessary security, of a not been issued to the applicant. fresh licence identical to that stolen save that the period of validity should be extended. 3. On 24 October 1979 the applicant sent a telex message to the Commission By order dated 29 November 1979 the in which it stated that the latter was Pretore di Lucca granted the application discriminating between the export of the for the adoption of interim measures and 12 500 tonnes of meal in question and ordered : export for food aid. The applicant stressed that it would be liable to heavy damages if it could not carry out the "(1) The Ministry of External Trade export on 30 October; there was no valid and the Ministry for Finance reason for refusing a second licence and

PARDINI v COMMISSION

By telex message on 20 November 1979 3. In any event, order the Commission, the Commission replied to the applicant in particular to avoid any aggra- that the present rules did not allow the vation of the damage, within the request to be granted since the second meaning of the combined provisions paragraph of Article 17 (7) of Regulation of Article 36 of the Protocol on the No 193/75 states that no duplicate is Statute of the Court of Justice and allowed for the purposes of export. It of Article 186 of the EEC Treaty, to added : authorize Pardini to effect the export of the quantities referred to in the licence reproduced in "(1) The Commission has not auth- Document 2 (Licence No 501341/ orized the Italian Government to 5495 of 14 June 1979), issue a second export licence regarding food aid; on which particular issue the Court of Justice has before it a separate document asking for the adoption of (2) As a general rule a licence is valid interim measures; throughout the Community."

4. Order the Commission to pay the costs." 4. On 6 December 1979 the applicant brought an action against the Commission before the Court of Justice under Articles 215 and 175 of the EEC In support of its application the applicant Treaty. The application was filed at the makes the following principal sub- Court Registry on 7 December 1979. missions:

In the application the applicant claims that the Court should: (a) Where an export licence is lost Article 17 (7) of Regulation (EEC) N o 193/75 should apply to all kinds of certi- " 1 . Declare that Article 17 (7) of Regu- ficates or licences, that is to say both lation (EEC) No 193/75 is invalid such as are issued for export for food aid

(b) The Commission's interpretation of These are unfounded fears for several Article 17 (7) of Regulation N o 193/75 reasons. In the first place the stolen seriously infringes the applicant's rights. licences are issued in the name of the Since the article restricts the rights of licensee and no trader would run the risk traders, it is obvious that the interpre- of the heavy penalties provided by the tation of its terms and expressions must law since his name would certainly be be strict and not wide. Therefore, since known to the national authorities as a the article speaks of loss, the meaning of result of customs clearance operations. In that word cannot be extended to include the second place the Commission and the also the consequences of theft. Italian State could in any event easily avoid any risk by requiring the Pardini undertaking to lodge security in the form of a bank guarantee equal to the amount of the refunds claimed.

The Commission's interpretation further infringes the applicant's rights by arbi- trarily confusing the right given by the licence to the exporter to the physical document evidencing the existence of (d) " Finally, the applicant claims that, if that right. It is obvious that the loss of the interpretation of Article 17 (7) of the document evidencing the right Regulation No 193/75 were the one cannot automatically and irrevocably challenged, that article would obviously extinguish the right to which the licence be unlawful for breach of the principle of refers. That interpretation also infringes proportionality in accordance with the the applicant's rights by allowing a now established case-law of the Court of

(f) As for the damage which it alleges it will suffer if it is not able to export very shortly, the applicant claims that it would be forced to use within a few days the stock which it has at present available "(1) T o authorize the Italian Govern- in store for its normal business and that ment, under Article 215 of the EEC it would therefore have to buy in raw Treaty, to issue a fresh export material at prices much higher than the licence identical to the licence set present prices and thus suffer very out in the annex to the application serious damage in addition to the loss of and conferring the rights to refunds the refunds fixed in advance. In this arising from the stolen licence and connexion the applicant refers to a telex at the same time duly extending its message from Miramar S.p.A. of Trieste validity; of 26 November 1979 which contains inter alia the following passage: "We understand your difficult position but we remind you that we have undertaken commitments in respect of the SN SEMPAC of Algiers and we can in no way release you from delivery. We are (2) T o require the applicant to lodge therefore absolutely forced to require security in the form of a bank you to comply with the contract because guarantee in accordance with the otherwise, as you know, the consignees detailed arrangements under may defer payment and thereby subject Community rules in favour of the us to very serious damage". Italian Ministry for External Trade

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(a) The applicant is claiming that the Commission should be required to do (c) The application must also be something which as an institution it has rejected because the basic conditions for no power to do since the Community the adoption of the provisional measures rules give the competent authorities of sought are not fulfilled. the Member States exclusive power as regards the issue of export licences, and the Commission has no power in the matter, but only an opportunity of First of all the Commission takes the giving, if asked, an opinion, which will view that the measure sought is in no not be binding, on the interpretation of way urgent since the applicant could use certain provisions of Community law. the goods in question for normal export Moreover, according to established or for other uses connected with its case-law applications for the adoption of business so that it is very difficult to interim measures cannot lead to the sub- understand why it. is urgent and stitution, even provisionally, of the indispensable for the applicant to export Court's discretion for that of the with the refund fixed on 14 June 1979. administration. Further, it is not an easily perishable product which must be disposed of speedily.

(b) The application for the adoption of interim measures is not within the powers of a court called upon for a In the second place the Commission decision in such matters since it is not a stresses that an application for the question of protective measures. On the adoption of interim measures assumes one hand the aim of the application is in that the applicant cannot await the part identical to that of the main action outcome of the main action without

2 T h e application refers t o a main application in which the applicant in essence claims that the C o u r t should:

ORDER OF 17. 1. 1980 — CASE 809/79 R

1. Declare that Article 17 (7) of Regulation (EEC) No 193/75 is invalid and that the conduct of the Commission is illegal inasmuch as it omitted to adopt a measure enabling Pardini to be authorized to export the quantities of meal referred to in the stolen licence; and

2. Order the Commission to pay to the applicant by way of damages such sums as shall be determined during the course of the proceedings.

3 Article 83 (2) of the Rules of Procedure provides that an application for the adoption of interim measures shall state the factual and legal grounds establishing a prima facie case for the interim measures applied for.

6 In this respect the applicant seems to allege in the first place that it will not be able to export the 12 500 tonnes of durum wheat meal in question unless it obtains the licence it seeks and that if it is not enabled to export very shortly it will be forced to use the goods available in its stores for normal business production with the result that to satisfy its delivery commitments it will have to purchase the raw material on the market at appreciably higher prices.

7 It appears from the applicant's statement and in particular the arguments which it has put forward in support of its application of 27 October 1979 made to the President of the court in Lucca for a declaration of the quantity of wheat it has available that it will be able to use those goods for export after applying to this end to the competent Italian authorities for another export licence relating to the same quantity but subject, as regards the refund, to the rules applicable on the day of issue of that licence.

s In the second place and still in relation to the imminence of serious and irreparable damage, the applicant alleges that if its claim is not granted it will lose the whole of the refund fixed in advance, that is some 2 100 million lire, since the refunds for the product in question have in the meantime been abolished.

9 Even if the amount of the refund is taken into account it must nevertheless be noted that the applicant has obtained a bank loan of that amount, and in spite of the heavy interest which it has to pay it has by no means established that it cannot await the outcome of the main action and that not obtaining the refund before judgment in the main action will cause it such serious and irreparable damage as to justify interim measures in view of the applicant's financial position.

1. The application for the adoption of interim measures is dismissed.

2. Costs are reserved.

Luxembourg, 17 January 1980.

A. Van Houtte H. Kutscher Registrar President