C-289/83

J U D G M E N T OF T H E COURT (FIRST CHAMBER) 13 DECEMBER 1984 1

GAARM — Groupement des Associations Agricoles pour l'Organisation de la Production et de la Commercialisation des Pommes de Terre et Légumes de la Région Malouine and Others v Commission of the European Communities (Liability for refusal to authorize a protective measure — Potato market)

Case 289/83

1. Non-contractual liability — Importation at low prices of new potatoes from Greece — Failure to act on the part of the Commission (EEC Treaty, Art. 46 and Art. 215, second para. Act of Accession of the Hellenic Republic, Arts 130 (2) and 131; Council Regulation No 17, Art. 3, and Council Regulation No 26, Art. 4)

2. Accession of new Member States to the Communities — Hellenic Republic — Agri- culture — Safeguard clause — Conditions governing its application — Appraisal by the Commission (Act ofAccession of the Hellenic Republic, Art. 130 (2))

In Case 289/83

9. SOCIÉTÉ COOPÉRATIVE A G R I C O L E " L A B A I E " , P l o u j e a n M o r l a i x , 10. SICA DES PRODUCTEURS DE LÉGUMES D U M O R B I H A N , P l o u h i n e c , 1 1 . SYNDICAT DES PRODUCTEURS D E P O M M E S D E T E R R E D E P R I M E U R D E P O N T - L'ABBÉ, Pont-1'Abbé, 12. SICOMA, M a r m a n d e , 13. SICAFEL D U CLAIRACAIS, C l a i r a c , 14. COOPÉRATIVE M A R A Î C H È R E DE L'ÎLE DE R É , Le B o i s - P l a g e - e n - R é , 15. COOPÉRATIVE AGRICOLE D E N O I R M O U T I E R , N o i r m o u t i e r , 16. SYNDICAT D E D É F E N S E D E LA P O M M E D E T E R R E , D U C H O U - F L E U R E T AUTRES LÉGUMES D E LA R É G I O N D E CHÂTEAURENARD, C h â t e a u r e n a r d , 17. SOCIÉTÉ COOPÉRATIVE AGRICOLE CAVAILLON PROVENCE PRIMEURS, Cavaillon, 18. FRUICOPROVENCE — U N I O N DES COOPÉRATIVES AGRICOLES FRUITIÈRES D E P R O V E N C E , Cavaillon, 19. U N I O N DES COOPÉRATIVES AGRICOLES D E FRUITS E T LÉGUMES DES P Y R É N É E S - ORIENTALES, P e r p i g n a n , represented b y D o m i n i q u e Schmidt of t h e Strasbourg Bar, with a n address for service in L u x e m b o u r g at t h e C h a m b e r s of G u y H a r l e s , C e n t r e Louvigny, 34 B I V R u e Philippe-Il, applicants, v COMMISSION O F T H E EUROPEAN COMMUNITIES, represented by François L a m o u r e u x , a m e m b e r of its Legal D e p a r t m e n t , acting as Agent, with an address for service in L u x e m b o u r g at t h e office of Manfred Beschel, also a m e m b e r of its Legal D e p a r t m e n t , J e a n M o n n e t Building, Kirchberg, defendant, A P P L I C A T I O N for compensation p u r s u a n t t o Article 215 of t h e E E C T r e a t y for t h e d a m a g e caused t o t h e applicants b y t h e fact t h a t t h e Commission refrained from applying t h e provisions of Articles 46 a n d 93 of the E E C T r e a t y , Articles 130 a n d 131 of the Act of Accession of G r e e c e a n d Regulations N o s 1 7 / 6 2 a n d 2 6 / 6 2 of t h e Council t o stop G r e e k exports of potatoes,

On 9 June 1983 the French Government I — Facts and written p r o c e d u r e asked the Commission to adopt a protective measure regarding new po- tatoes coming from Greece. A similar request was made by the Government of According to the applicants, as early as the United Kingdom on 20 June 1983. 1981 and 1982 loss-making sales of new The Commission did not accede to those potatoes of Greek origin had disturbed requests. the markets in the United Kingdom and the Federal Republic of Germany. On 20 June 1983 two associations of potato producers, the Société d'Initiatives On 5 April 1983, because they et de Coopération Agricoles, Kerisnel, considered that Greek exporters were Saint-Pol-de-Léon, and the Société again going to dump produce on the Interprofessionnelle des Producteurs et Community markets in the 1983 Expéditeurs de Fruits, Légumes, Bulbes et marketing year, certain associations of Fleurs d'Ille-et-Vilaine, of Saint-Meloir- French potato producers asked the des-Ondes, brought an action based on Commission to take such action as might Article 175 and on the second paragraph be necessary to prevent entirely any of Article 215 of the EEC Treaty (Case repetition of the discriminatory practices 114/83). complained of in 1981 and 1982.

An application for the adoption of By a telex message of 22 April 1983 the interim measures which was lodged by Commission replied that it was studying those associations on 1 July 1983 was the problem closely and that it would not dismissed by the President of the Court fail to take the appropriate action. of Justice by an order dated 12 July 1983. As a result, the associations discontinued their action in so far as it On 2 June 1983 the associations in was based on Article 175 of the EEC question notified the Commission that Treaty. the prices of new potatoes on the German, United Kingdom and French markets were dropping as a result of By a document entitled "Reply and imports of Greek potatoes which, in their Application to Intervene", which was opinion, were subsidized by the Greek lodged on 2 September 1983 by the Government. On the same day, the lawyer representing the applicants in

Case 114/83, a further 25 associations of Syndicat des Producteurs de Légumes et French potato producers declared that Fruits de la Basse-Vallée du Gardon, they wished to intervene as parties to the Meynes, action. which by the above-mentioned date, had On 19 October 1983 the Court made an not put their application in order by order rejecting the application to producing the necessary documents, intervene on the grounds that the namely the instruments constituting and conclusions contained therein went regulating them and proof of the beyond the conclusions set out in the authority granted to their lawyer. original application and that, in so far as they purported to support the conclusions of the applicants, the prospective interveners had no interest in II — C o n c l u s i o n s of t h e p a r t i e s intervening in relation to the conclusions of one of the parties to the action. The applicants claim that the Court On 23 October 1983 the 25 associations should: whose application to intervene in Case 114/83 had been refused brought an Declare and decide that the Community action based on the second paragraph of is liable to the applicants, by virtue of the Article 215 of the EEC Treaty. second paragraph of Article 215 of the Treaty of Rome, for the wrongful failure Upon hearing the report of the Judge- of the Commission to act; Rapporteur and the views of the Advocate-General, the Court decided to Order the Community to make a open the oral procedure without any payment on account to the applicants of preparatory inquiry. By an order dated FF 5 000 000; 20 June 1984 it assigned the case to the First Chamber. Appoint such expert as the Court of Justice may decide, to quantify the By an order of the Court (First damage suffered by the applicants from Chamber) of 10 July 1984, made an accounting, commercial and financial pursuant to Article 38 (7) of the Rules of point of view after making all necessary Procedure, the action was declared inquiries; inadmissible in respect of the following associations : Reserve to the applicants the right to fix, Union des Producteurs Vendeurs de after the expert's report has been Fruits et Légumes, Marmande, received by the Court, the final amount of compensation due to them; Groupement des Producteurs de Pommes de Terre de Primeur du Bassin Order the defendant to pay the costs de l'Adour, Dax, in their entirety, including travelling ex- penses, the cost of preparing the case Sorep — Syndicat pour l'Organisation and the lawyer's fees. Économique des Productions, Hyères, Groupement de Producteurs du Sud-Est The Commission contends that the Court de Fruits et Légumes pour la Conserve et should: le Marché du Frais, Orange, Dismiss the application as inadmissible Syndicat pour l'Organisation Eco- and, in the alternative, as unfounded; nomique des Producteurs de Fruits et Légumes du Roussillon, Perpignan, and, Order the applicant to pay the costs.

III — Submissions and argu- marketing year were subsidized by the m e n t s of the p a r t i e s Greek State as part of a concerted campaign involving the State, the producers and middlemen (in this case Admissibility of the application the firm Agrex) and that those exports, at extremely low prices, gave rise to a The Commission submits that the serious crisis on the markets in France, application is inadmissible on the ground the Federal Republic of Germany and that the applicants do not themselves the United Kingdom. have any interest in bringing an action. In the Commission's view, the applicants have failed to show that they are In their view, the aid granted by Greece producers or that they constitute a to its exporters is contrary to the EEC producers' cooperative. Instead, as trade Treaty, to the legislation implementing associations whose object under the the Treaty and to the Act of Accession instruments constituting and regulating of Greece, since it gives rise to serious them is the marketing of fruit and discrimination between Community pro- vegetables, they are claiming a collective ducers, affects the competitive position right to compensation for damage to the of similar production in other Member financial interests of their members. The States, distorts competition by favouring Court has refused to recognize the Greek exporters on the United Kingdom,

the other hand, they were found to have In the opinion of the applicants, the an interest in bringing an action as Commission, although well aware of dealers, they would still have to show those infringements, wrongly failed to how the alleged damage directly take any action, notwithstanding that it concerns their activities as defined in the had the means to enforce the EEC instruments constituting and regulating Treaty and the Act of Accession. them. Among such means of action, the The applicants state in reply that, as is applicants list the following: apparent from the instruments con- stituting and regulating them, they are in fact associations of producers which The adoption of protective measures acquire the producers' produce and sell it under Article 130 of the Act of on the wholesale markets.

JUDGMENT OF 13. 12. 1984 — CASE 289/83

markets were disrupted by the imports, The fact that the infringement procedure as is proved by the fact that, for provided for by Article 169 was example, on the London market prices commenced against Greece for failure to had remained stable until the first week notify the aid can in no way detract from of June, despite the existence of very the conclusion that the Commission large stocks of ware potatoes, and that failed to use the means available to it. they only dropped after the arrival of That procedure was in fact commenced large quantities of Greek new potatoes. on 4 July 1983, whilst the existence of the Greek aid had already been reported in 1981 and 1982 and the Commission had been made aware as early as 5 April The adoption of recommendations ad- 1983 of the possibility that such aid dressed, under Article 131 of the Act of might be granted for the 1983 season as Accession, to the person or persons well and had been informed no later responsible for the dumping "for the than 2 June 1983 that it was actually purpose of putting an end" thereto. being given.

GAARM / COMMISSION

loss or to refrain from exporting. Since question were not superior rules of that result could have been avoided if the law for the protection of individuals; Commission had ensured that the EEC Treaty and the Act of Accession were 3. That no damage has in fact been applied, it follows that the Community is proved and in any case there is no under an obligation to make good the causal relationship between the al- damage suffered by the applicants. The leged infringement and the damage. view that French producers could have limited their losses by keeping the new potatoes in the ground and marketing As regards the first point, it considers in them later as ware potatoes is wholly detail the provisions relied upon by the untenable. They could not reasonably be applicants. expected to abandon the very profitable market in new potatoes so as to stand As regards failure to adopt protective aside for subsidized Greek imports. measures under Article 130 of the Act of Accession, the Commission considers that there was no "serious disturbance" The damage suffered by French pro- of the market such as to justify either the ducers as a result of imports of Greek introduction of a countervailing charge potatoes sold at extremely low prices on or suspension of the contested exports. the markets of the Member States reflects both the loss of exports to the United Kingdom and the Federal It states in particular that: Republic of Germany and the loss of income due to the state of crisis of the Greek new potatoes account for only market. That loss is calculated at FF about 5 % of total imports into Member 98 894 410 in respect of lost turnover States of the Community and 10 % of and at FF 7 000 000 in respect of lost intra-Community trade; exports to the Federal Republic of Germany. No exact figure is given in The prices of Greek potatoes are not in respect of lost exports to the United general lower than those of potatoes of Kingdom. the same quality produced in the other Member States;

that it is not applicable to new potatoes Finally, the Commission points out that, but rather may be invoked only with even if Article 46 were still applicable respect to products for which transitional after the end of the transitional period, measures or measures derogating from the applicants have not shown that the EEC Treaty are provided for in the Greek new potatoes are "subject to a Act of Accession, that not being the case national market organization or to with regard to the products in question. internal rules having equivalent effect which affect the competitive position of similar production in another Member Article 3 of Regulation N o 17 places no

No obligation in- cumbent upon the Commission to terminate the practices complained of According to the decisions of the Court, can therefore be inferred from that the exercise of such discretion renders provision. the Community liable only if there is a sufficiently serious infringement of a superior rule of law for the protection Moreover, the applicant's allegations of individuals. According to the Com- concerning the activities of Agrex are mission, the applicants have not claimed unfounded, since that company is that any general principle of Community involved in the marketing of citrus fruits law has been infringed nor have they and not of new potatoes. proved that the alleged infringement derives from a substantive or manifest As regards Article 93 (2), the Com- error on the part of the Commission. mission points out that Regulation No 26/62 does not provide for the application of that provision to agri- The Commission denies that any damage

incompatible with Article 92. The the absence of a common organization Commission adds that, according to the of the market. The Commission cannot information which it has been able to guarantee price stability on the new- obtain, in 1983 the Greek Government potato market and is therefore under no abandoned its original intention of obligation to make good any damage granting aid for exports at the end of the resulting from loss of expected profit or new-potato marketing year. commercial risks in general.

3 The Commission has objected that the application is inadmissible on the ground that the applicant associations, which have not proved that they are producers or production cooperatives, are in fact seeking to enforce a collective right to compensation for damage to the financial interests of the

JUDGMENT OF 13. 12. 1984 — CASE 289/83

individual producers making up their membership, whereas according to the case-law of the Court no such right exists (judgment of 18 March 1975 in Case 72/74, Union Syndicale V Council, [1975] ECR 401).

4 It is not, however, apparent from the applicant's claims that they purport to act in the capacity of producers nor is it possible to infer that capacity from the instruments constituting and regulating them, which were produced to the Court. On the other hand they have stated that they are producers' associations which acquire produce from the growers and sell it on the wholesale markets. They have also stated that they are seeking compensation not for the damage suffered by the associated producers as a whole, but for the damage which they themselves have suffered.

5 In those circumstances, it cannot be denied that the applicants are entitled to bring an action for damages, in so far as the action is based on the loss suffered by them in their capacity as dealers in new potatoes.

6 The submissions put forward by the applicants in support of their application are based primarily on the allegation that the Commission infringed Community law by failing, despite massive imports of Greek new potatoes benefiting from State export aid, to adopt measures to neutralize the adverse consequences of that situation.

10 It thus appears that the risk of disturbing the French market cannot be isolated from the risk affecting the United Kingdom market, which gave rise to a reduction in outlets for French potatoes. It is necessary therefore to consider the question of the possible application of protective measures principally in relation to the situation on the United Kingdom market.

1 1 In that connection, the Commission did not consider that, either by reason of their quantity or their price, the potatoes from Greece disturbed or were likely to disturb the United Kingdom market seriously. In the proceedings before the Court it contended that the true reasons for the fall in prices on the United Kingdom market were the existence of veiy large stocks of ware potatoes and the fact that supplies were simultaneously available from various sources during a very short period. It is necessary therefore to establish whether, on the basis of the information in its possession on 20 June 1983, the Commission was justified in not adopting the measures in question.

12 It must in the first place be pointed out that, since a very large quantity of ware potatoes was produced in the Autumn of 1982, large stocks of ware potatoes existed at the beginning of the marketing season for new potatoes, as is proved by the fact that, according to the statistics from the United Kingdom Ministry of Agriculture produced by the Commission, the remaining stocks of ware potatoes still amounted to 60 000 tonnes on 22 June 1983, whereas on 22 June 1982 they had amounted to only 30 000 tonnes.

15 Those assessments are based on findings of fact which are correct. It is apparent from the Potato Marketing Board's statistics that Greek imports into the United Kingdom between 1 June and 11 June 1983 accounted for 220 tonnes out of a total of 34 675 tonnes sold on the United Kingdom market and, between 11 and 17 June, for 3 754 tonnes out of a total of 35 302 tonnes. It was only in the week from 18 to 24 June that they reached the level of 10 402 tonnes out of a total of 42 516 tonnes.

GAARM / COMMISSION

16 In the light of those figures, the Commission was justified in concluding that, even if their price was below that of competing produce, the Greek potatoes, by reason of their small quantities, could not have given rise to a general downward movement during the period preceding the request for protective measures. Nor is there any basis for taking the view, as the applicants do, that the announcement that large quantities of Greek potatoes were expected to arrive after 17 June 1983 could have upset prices as from 7 June 1983.

17 The question now to be considered is whether it was reasonable for the Commission to take the view that the considerable quantities of Greek potatoes to be imported after 20 June 1983 would not seriously disturb the United Kingdom market.

18 It must be stated in that connection that, on the basis of the experience acquired in the preceding years, the Commission was able to foresee that, even if about 30 000 tonnes of Greek potatoes had not been imported the market demand, which in 1981 and 1982 had stabilized at about 90 000 tonnes in June, would have led to their place being taken by potatoes from elsewhere and the market situation would not thereby have been significantly affected.

23 The Commission also stated at the hearing that it did not remain inactive when the applicants asserted that agreements existed which were contrary to the competition rules of the Treaty but in fact sent an inspector to Greece who, however, found no trace of the existence of any agreements between undertakings dealing in new potatoes.

24 In those circumstances, the Commission cannot be criticized for failing to adopt any decision under Article 3 of Regulation N o 17/62.

25 Nor is it pertinent to refer to Article 131 of the Act of Accession, under which the Commission has the power, “before the expiry of the period of application of the transitional measures laid down under this Act for each case”, to address recommendations, upon application by a Member State or any other interested party, to the person or persons responsible for dumping for the purpose of putting an end to that practice. Since no transitional measure was laid down for new potatoes, it must be considered that the normal rules of the Treaty are to apply to that product.

26 According to the applicants, the Commission could also have decided under Article 93 (2) of the EEC Treaty that Greece was to abolish the aid for the export of potatoes.

GAARM / COMMISSION

27 There is no need give any decision as to the actual existence of such aid, it being sutticient to point out with regard to that argument that under Article 42 of the EEC Treaty The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the Council” and that Article 4 of Council Regulation No 26/62, which declares Article 93 (1) and (3) to be applicable to agricultural products, does not declare applicable Article 92, which prohibits State aid or Article 93 (2), which confers upon the Commission power to decide that a Member State must abolish or alter such aid Since potatoes are not subject to a common organization of the market, the provisions of Article 4, mentioned above, are so far the only provisions applicable to them.

32 The application must therefore be dismissed.

Costs

33 Under Article 69 (2) of the Rules of Procedure the unsuccessful party must be ordered to pay the costs, if they have been asked for in the successful party's pleadings. Since the applicants have been unsuccessful in their submissions, they must be ordered to pay the costs.

On those grounds,

T H E C O U R T (First Chamber)

hereby: