C-232/81
ECLI:EU:C:1981:191
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O R D E R OF T H E PRESIDENT OF T H E C O U R T 21 AUGUST 1981 1
Agricola Commerciale Olio S.r.l. and Others y Commission of the European Communities
Case 232/81 R
Application for the adoption of interim measures — Suspension of operation — Conditions governing the grant of interim measures — Serious and irreversible nature of alleged loss — Criteria applicable (EEC Treaty, Arts 185 and 186; Rules of Procedure, Art. 83 (2))
In Case 232/81 R
1. AGRICOLA COMMERCIALE OLIO S.R.L., Ostuni (Brindisi), 56 Viale Pola; 2. ASTOLIO S.R.L. Ostuni (Brindisi), 56 Viale Pola; 3. AZIENDA AGRICOLA BELLARIA S.P.A., Trecate (Novara), 76 Via San Cassiano; 4. ITALIANA OLII E RISI S.P.A., Aprilia (Latina), 44.4 km along the Strada Statale Pontina; 5. SAN GIORGIO SEZIONE AGRICOLTURA S.P.A., Pomezia (Rome), 23 km along the Via Laurentina, represented by Giuseppe Celona of the Milan Bar, Giovanni B. Compagno of the Rome Bar, Giuseppe Guarino of the Rome Bar, and Paolo M. Tabellini of the Milan Bar, all of whom have an address for service in Luxembourg at the Chambers of Georges Margue, Advocate, 20 Rue Philippe-II, applicants, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Cesare Maes- tripieri, Principal Legal Adviser, acting as Agent, assisted by Guido Berardis, a member of its Legal Department, with an address for service in Luxem- bourg at the office of Oreste Montako, a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg, defendant, 1 — Language of the Case: Italian.
ORDER OF 21. 8. 1981 — CASE 232/81 R
supported by SAVMA S.P.A., Milan, 6 Via Santa Maria Segreta, represented by Edouard Jakhian and Michel Mahieu of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Mr Arendt, Centre Louvigny, 34 Rue Philippe-II, intervener, APPLICATION to suspend the operation of Commission Regulations (EEC) Nos 2238/81 and 2239/81 of 3 August 1981 (Official Journal L 218 of 4. 8. 1981, p. 27 et seq.),
THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
makes the following
ORDER
Facts and Issues
I — On 12 January 1981 the carried out in the order of submission of Commission adopted Regulation (EEC) applications to purchase, until those lots N o 71/81 on the sale of olive oil held by were all disposed of. In the event of the Italian intervention agency (Official applications to purchase being submitted Journal L 11 of 13. 1. 1981, p. 5). on the same day for the same lot, AIMA According to Article 1 of the regulation, was to designate as purchaser the the abovementioned intervention agency applicant who submitted applications to (Azienda di Stato per gli Interventi sul purchase several lots or, where that was Mercato Agricolo, hereinafter referred to impossible, determine a purchaser by as "AIMA") was to put up for sale some drawing lots. Purchasers were required 33 000 tonnes of virgin olive oil from to undertake to refine the oil purchased intervention purchases made during the or not to offer it for sale on the Italian 1977/78 olive marketing year. That or Greek markets and to withdraw, as quantity was to be divided into six lots of from 15 March 1981, in each period of approximately 5 500 tonnes each (Article thirty days, at least 10 % and at most 2) and the selling price was fixed at LIT 20 % of the purchased quantity (Article 210 000 per 100 kg (Article 4 (1)). The 8). Security was to be provided in order sale was to commence on the tenth day to guarantee performance of the various following posting of the notice of sale obligations. and the allocation of the lots was to be
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On 2 February 1981, that is to say on withdrawal of the oil purchased is to the first day of the period in which commence on 15 September 1981 at the applications of purchase could be same monthly rate (at least 10 % , but submitted, sixty undertakings submitted not more than 20 % ) as that provided tenders, each covering all the lots put up for previously (Article 9). for sale. The allocation of the lots was delayed following certain complaints and it was not until 1 June 1981 that the drawing of lots took place; the outcome II — By application received at the was that the five applicants and the Court Registry on 10 August 1981, the intervener in this case were designated as applicants in this case brought an action purchasers of the abovementioned lots. to have Commission Regulations Nos 2238/81 and 2239/81 of 3 August 1981 declared void. On 3 August 1981, the Commission adopted Regulation (EEC) N o 2238/81 repealing, with effect from 13 January In support of their applications, they 1981, Regulation N o 71/81. In the relied in particular on the following preamble to Regulation N o 2238/81 the grounds : Commission relies on the fact that the sale was delayed by the inquiry into the complaints referred to above and that meanwhile the conditions on the olive oil 1. Infringement of Articles 189, 290 and market had altered so that to make the 42 of the EEC Treaty and of the sale on the conditions originally laid general principles governing the down would have resulted in serious repeal of legislation, retroactivity, disturbance of the market. Accordingly, respect for vested rights and legal the Commission considered that "the certainty; overriding general interest" demanded the cancellation of the sale in question. 2. Lack of competence and infringement of Articles 11 (5) and 38 (3) of Regu On the same day the Commission lation (EEC) N o 136/66; adopted Regulation (EEC) N o 2239/81 re-opening the sale by tender of the same quantity of olive oil held by the Italian 3. Absence or inadequacy of reasons; intervention agency. The fresh sale is conflict with previous decisions and reserved for the six undertakings to which the lots were previously allocated conduct; mistake of fact and manifest (Article 3). The fresh sale is not, illogicality; however, to be made at a fixed price but to the highest bidder and on condition that the price tendered is at least equal to 4. Misuse of powers in that the real a minimum price which is to be fixed not purpose of the contested measures is later than 31 August 1981, in accord to act as a veil for a decision not to ance with the procedure provided for perform certain contracts which have in Article 38 of Regulation No been entered into and to promote the 136/66/EEC on the basis of the tenders interests of a specific group of under received (Article 6). Tenders are to be takings alleged to dominate the submitted not later than 24 August 1981 market in oils intended for at 2 p.m. (local time) (Article 4). The refinement.
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By a separate document, also received the imminent prospect of suffering on 10 August 1981, the applicants considerable loss by the sale to third submitted, in accordance with Article parties of goods to which they have 185 of the EEC Treaty and Article 83 of acquired title by undertaking very heavy the Rules of Procedure of the Court of financial commitments. Finally, they add Justice, an application to the President of that the adoption of the protective the Court for an order to suspend measure sought by them would be in the forthwith the operation of Regulations interests of the defendant which has, in Nos 2238/81 and 2239/81. view of the manifest illegality of its conduct, laid itself open to very high claims for damages.
In an interlocutory order of 20 August 1981 the President granted Savma S.p.A., the sixth purchaser of a lot sold in In its reply, received at the Court accordance with Regulation No 71/81, Registry on 18 August 1981, the leave to intervene in support of the Commission contends that the conditions defendant's submissions in the present laid down by Article 83 (2) of the Rules case. of Procedure have not been fulfilled.
(a) The application for the adoption of III — In support of their application for interim measures does not specify the the adoption of interim measures, the factual and legal grounds establishing a applicants contend in particular that the prima facie case for the adoption of the submissions upon which they rely in their interim measure applied for. The main action establish a prima facie case application to suspend the operation of inasmuch as they refer to undisputed and Regulation N o 2238/81, which repeals indisputable facts, circumstances attested Regulation N o 71/81, has no purpose in by various documents and fundamental view of the fact that the repealing regu- and unquestionable principles of law. It lation takes effect immediately thus pre- is, moreover, a matter of the utmost cluding any implementing measure in urgency to suspend the operation of the respect of which a suspension order may contested measures since, according to be sought. The applicants are in fact the very terms of Regulation N o requesting the Court to "suspend the 2239/81, the applications to purchase repeal" which lies beyond the powers of must be submitted before 24 August 1981 a court hearing an application for the and the minimum selling price for each adoption of interim measures. The lot, on which the acceptance or rejection purpose of such a request is identical to of those tenders will depend, must be that of the main action. Accordingly, in fixed not later than 31 August 1981 so far as the application seeks to suspend (Article 6 of Regulation N o 2239/81). the operation of Regulation No The applicants also maintain that they 2238/81, it is inadmissible. cannot participate in the fresh invitation to tender on the ground that if they take part "conditionally" their tender would not be regarded as valid, whilst not to express any reservations would be With regard to Regulation N o 2239/81, tantamount to waiving their vested the application to suspend its operation is rights. Accordingly, they are faced with somewhat surprising since it runs counter
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to the applicants' own interests. That judgment on the substance of the case. regulation restricts to successful With regard to Regulation No 2239/81, tenderers who participated in the the applicants' contention that the goods cancelled sale the right to tender for the would be sold to third parties is six lots of oil, though none of the under unfounded since the regulation in takings may be allocated more than one question restricts the invitation to tender lot. The only requirement is that the to the successful undertakings which fresh tenders must be reasonable, having took part in the sale organized in regard to the conditions on the market accordance with Regulation No 71/81. which must be reflected in the minimum According to the Commission, it is price which has to be fixed. The precisely a suspension of the operation of applicants thus seek the adoption of a the regulation which would occasion the measure which is to their detriment. most serious loss, in view of the deterio ration of the oil and the accumulation of storage costs.
(b) The Commission also contends that, by taking part in the new invitation to tender, the applicants would in no (d) The Commission also contends that way surrender "vested rights" but could the five applicant undertakings are obtain the products for which they are amongst the largest European operators competing with one another. If any other in the sector, with the result that the vested rights are being disregarded, they potential loss which they allege could in may still be relied upon in the no way jeopardize their commercial and proceedings on the substance of the case financial situation, still less their and possibly result in damages being existence. They are anxious to retain the awarded. According to a general legal large profit to which they claim to be principle, a person who sustains a loss is entitled in the light of events. In the required to do everything within his Commission's opinion, that aim cannot power to mitigate it. In the present case, be taken into consideration in pro participation in the invitation to tender is ceedings for the adoption of interim the best, if not the only way to mitigate measures. In the event of the applicants' the alleged loss. claim being upheld by the Court in its decision on the substance of the case, the right approach would be for the applicants to bring an action for damages in due time and in the appropriate place.
(c) Nothing has been done to establish the existence of circumstances giving rise to urgency; there is no proof that, unless the measure applied for is granted, serious and irreparable damage will be sustained in the imminent future. The IV — The parties, including the operation of Regulation No 2238/81 intervener, were duly summoned and does not inflict a serious and irreversible presented oral argument at the hearing loss on the applicants pending the on 20 August 1981.
ORDER OF 21. 8. 1981 — CASE 232/81 R
Decision
1 Under Article 185 of the EEC Treaty, actions brought before the Court of Justice do not have suspensory effect. The Court may, however, if it considers that the circumstances so require, order that application of the contested measures be suspended. It may also, under Article 186 of the Treaty, prescribe any necessary interim measures.
2 Under Article 83 (2) of the Rules of Procedure, the suspension of the operation of a measure and the decision to adopt interim measures are subject to the existence of conditions giving rise to urgency and of grounds establishing a prima facie case for the grant of such a measure.
3 Measures of that kind may be considered only if the factual and legal circumstances relied upon to obtain them establish a prima facie case for granting them. Moreover, they must be urgent in the sense that it is necessary for them to be adopted and to take effect before the Court gives its decision on the substance of the case in order to prevent the party which seeks their adoption from suffering serious and irreparable damage. Finally, the measures must be of an interim nature inasmuch as they must not prejudice the decision on the substance of the case.
4 The applicants rightly contend that the first of those conditions has been fulfilled. The purpose of the two regulations contested in the main action is to annul the legal effects of putting up for sale certain quantities of olive oil of which the applicants are to all appearances the rightful purchasers. The Commission itself admits that contracts of sale are involved and that their cancellation impairs the rights acquired thereunder. In that regard it refers to certain concepts relating to powers of expropriation without, however, at the present stage of the proceedings, specifying the legal basis of such powers under Community law. It also states that any rights vested in the applicants will be protected by procedures for compensation on the subject of which, however, the contested regulations are silent.
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5 Without prejudice to the decision to be given on the main action, it appears that the challenge by the applicants to the legality of the Commission's measures, which have the scope and the effects described above, is based on serious considerations such as to make the legality of those measures seem doubtful to say the least.
6 With regard to the question of urgency and the need to prevent serious and irreparable damage, the applicants contend in the first place that under Regu lation No 2239/81, the final date for the submission of fresh applications to purchase is 24 August 1981. They also maintained that they would not be able to participate in that sale by tender without harming their interests since if their tenders had been submitted conditionally they would not be regarded as valid, whereas if they were not made subject to any reservation, those tenders would entail a waiver of the rights which they acquired under the previous sale.
7 That argument is insufficient to justify suspending the operation of the contested measures. The Commission has agreed that formal note should be taken of its declaration that the applicants' participation in the invitation to tender provided for by Regulation No 2239/81 entails no waiver whatsover on their part of any rights which they may derive from the sale which took place under the repealed regulation. It is necessary to take formal note of that declaration for the benefit of the applicants and to take steps to enable them to participate, if they so desire, in the fresh tendering procedure on conditions such as to safeguard all their rights.
8 The applicants then contend that if they are required to take part in the planned invitation to tender notwithstanding the fact that they are the rightful owners of the goods under the previous sale, they will incur an extremely heavy financial burden in addition to the onerous commitments which they have already undertaken in order to acquire the quantities in question. They also state that the invitation to tender in which they have been requested to take part, although restricted to the six undertakings to which the lots were allocated under the cancelled sale, is organized in such a way that it is uncertain whether they will again be successful in purchasing one of the lots which was put up for sale the first time. They add that the
ORDER OF 21. 8. 1981 — CASE 232/81 R
economic effects of that uncertainty are aggravated by the difficulties which they would experience in procuring elsewhere the raw material which they require.
9 It is clear from those considerations that the applicants are actually faced with a serious and immediate loss, the effects of which cannot be offset by the prospect of an unspecified amount of compensation in the future when all the evidence suggests that they are being deprived of their property. The serious and irreparable nature of the loss alleged in support of an application to suspend the operation of certain measures or for the adoption of interim measures must be assessed in concreto. The mere fact that under the Community legal order an action for damages may be brought where loss has been sustained does not, contrary to the view apparently suggested by the Commission, necessarily mean that the alleged loss cannot be regarded as irreparable. In the present case, a comparison between the immediate adverse effects of the harm inflicted on the applicants' legal and economic situation and the compensatory effects of a future award of damages against the Community leads to the conclusion that there is justification for preventing, at least in part, an immediate loss by the adoption of interim measures instead of relying exclusively on the possibility of future compensation for the loss by means of an action for damages.
10 However, those considerations do not justify the suspension, without qualification, of the operation of the two contested regulations as sought by the applicants. According to the applicants themselves, such a measure should have the effect of compelling AIMA, by a court order if necessary, to deliver the lots of olive oil to the tenderers designated by lots on 1 June 1981 under the repealed regulation. Consequently, such a measure would in fact prejudge the outcome of the main action and deprive it of any purpose.
1 1 Furthermore, it has been established in the course of these proceedings for the adoption of interim measures that the six lots of olive oil put up for sale in accordance with Regulation No 71/81 are largely interchangeable
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although it may be that not all the lots contain oil of the same nature and quality. It is necessary in this regard to point out that when the goods were previously put up for sale, each of the applicants had offered to purchase the six lots and that the allocation of one lot to each applicant took place by the drawing of lots. Moreover, according to Article 6 of Regulation No 2239/81, the re-opening of the sale by tender is organized in such a way as to ensure that the six successful tenderers obtain only a single lot each.
12 Accordingly, it is necessary in order to avoid the loss described above to ensure, first, that the applicants may decide freely whether or not it is in their interest to take part in the fresh invitation to tender, without any failure to participate on their part depriving them of the possibility of relying upon a right to receive one of the lots in question. Secondly, it is necessary to ensure, if they decide to take part, that they may retain or acquire one of the lots put up for sale on financial terms which do not entail a provisional increase — at least an appreciable one — in the costs which they have incurred so far.
1 3 That outcome may, in substance, be arrived at if, first of all, care is taken to ensure that the lots put up for sale again cannot, if they are not acquired by one of the five applicants, be sold to third parties before the Court has ruled on the main action and if, secondly, the applicants may retain or acquire one of the lots in question on such terms as to ensure that the definitive financial burden is not borne by them until the Court has ruled on the main action.
1 4 Accordingly, in order to attain that objective, it is necessary to take formal note, by this order, of certain declarations by the Commission and to order the suspension of the operation of Regulation No 2239/81 within the limits set out below.
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On those grounds,
THE PRESIDENT OF THE COURT
by way of interlocutory decision,
hereby orders as follows :
1. Formal note is taken, for the benefit of the applicants, that the Commission has stated that the applicants' participation in the tendering procedure laid down by Commission Regulation (EEC) No 2239/81 of 3 August 1981 entails no waiver whatsoever on their part of any rights which they may derive from the sales which were cancelled by Commission Regulation (EEC) No 2238/81 of the same date repealing Commission Regulation (EEC) No 71/81 of 12 January 1981.
2. Formal note is taken, for the benefit of the applicants, of the Commission's statement that if one or more of the lots were not to be allocated under the tendering procedure in question, those lots would not be disposed of without a new decision by the Commission of which the applicants would be informed in due time. Consequently, the Commission is hereby prohibited from disposing of, or allowing the disposal of, any unallocated lots before the date on which judgment is given in the main action, unless permission is obtained from the President of the Court by means of an application for the adoption of an interim measure.
3. The application of Article 10 of Commission Regulation (EEC) No 2239/81 of 3 August 1981 shall be partially suspended inasmuch as the applicants who, subject to the abovementioned reservation of their vested rights, participate in the sale by tender by submitting applications to purchase not later than 2 p.m. on 24 August 1981 and who must be permitted to submit their tenders subject to the said reservation of their rights, shall, in respect of the lot to be allocated to each of them on the basis of their tenders, be required to pay to AIMA for each part of that lot, as referred to in Article 9 of the regulation, at the time of the withdrawal of that part, only so much of the price tendered as is equal to the amount which they would have
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had to pay under the terms of the sale undertaken under Regulation (EEC) No 71/81. Payment of the remainder shall be suspended until the Court has given judgment in the main action, unless in the meantime any amendment is obtained from the President of the Court by means of an application for the adoption of an interim measure. The Commission shall be responsible for ensuring that AIMA delivers the goods on the abovementioned conditions.
4. The guarantee to be provided under Article 4 (5) of Regulation (EEC) No 2239/81 of 3 August 1981 shall also be calculated on the basis of the amount to be paid on a provisional basis and not on the basis of the amount of any tender which may be accepted, as provided for by Article 6 of that regulation.
5. The remainder of the application is dismissed and the implementation of Commission Regulation (EEC) No 2239/81 of 3 August 1981 shall proceed subject to the abovementioned conditions.
6. The costs, including those of the intervention, are reserved.
Luxembourg, 21 August 1981.
A. Van Houtte J. Mertens de Wilmars Registrar President