C-1/84

ORDER OF T H E PRESIDENT O F T H E COURT 1 FEBRUARY 1984 1

Ilford SpA ν Commission of the European Communities

Case 1/84 R

1. Proceedings on application for adoption of interim measures — Suspension of operation — Interim measures — Admissibility of application — Conditions — Measure of individual concern to applicant (EEC Treaty, Arts. 185 and 186)

2. Measures adopted by the institutions — Temporal application — Retroactivity — Conditions — Particular reasons

In Case 1/84 R

Decision of 20 O c t o b e r 1983 authorizing the Italian Republic n o t t o apply C o m m u n i t y t r e a t m e n t to films for colour p h o t o g r a p h s originating in J a p a n ,

T H E P R E S I D E N T OF T H E C O U R T OF JUSTICE OF T H E ' E U R O P E A N C O M M U N I T I E S

makes the following

ORDER

I — S u m m a r y of t h e facts Using information obtained on the basis of that decision, on 10 October 1983 the Italian Republic made a request pursuant to Article 115 of the EEC Treaty that it be authorized not to apply Community treatment to those films, originating in Japan and put into free circulation in the By decision of 19 July 1983 (Official other Member States, until 30 September Journal, L 218, p. 14), the Commission 1984. It requested that this measure also authorized the Italian Republic to cover applications for import permits introduce intra-Community surveillance already pending. of imports of film in rolls, sensitized, unexposed, perforated or not, for colour photographs, originating in non-member By decision of 20 October 1982 countries but put into free circulation in addressed to the Italian Republic the the Community. The decision was taken Commission authorized Member States, at the request of the Italian Republic as from 5 October 1982 and until which in support of its request provided 5 March 1984, not to apply Community the Commission with information on the treatment to films in rolls, sensitized, economic difficulties which might result unexposed, perforated or not, for colour for the sole Italian producer from the photographs (Common Customs Tariff loss of its market share for the product subheadings 37.02 ex A II and ex B IV; in question; in such circumstances the Nimexe codes 37.02/31, 35, 41, 43, 92), , producer would no longer be able to originating in Japan and put into free continue its own production and thus to circulation in the other Member States, provide employment in Italy. for which applications for import permits

had been lodged after 4 October 1983. It decision contested in the main pro­ is however specified that this authori­ ceedings is justified neither in law nor in zation does not cover a quantity of fact. The importation of Japanese colour 100 000 units, to be shared among the films cannot cause the difficulties to applicants for import permits whose which Article 115 refers, because that applications were duly pending on the flow of trade is balanced by the export date of the decision. A notification of the to Japan of black and white films and decision was published in the Official accessory products of Italian origin. Not­ Journal of 22 October 1983 (Official is there any deflection of trade with the Journal, C 285, p. 6). meaning of Article 115 because the films in question were in free circulation in the United Kingdom, and when the By application registered at the Court on Commission adopted the contested 3 January 1984 Ilford SpA, a company decision Italy had not implemented registered under Italian law, brought protective measures or measures regu­ proceedings for a declaration that the lating the direct import into Italy from Commission Decision of 20 October Japan of films of the type concerned. 1983 is void. In a separate document registered at the Court on the same day, the applicant applied, pursuant to Article The applicant further argues that the 185 of the EEC Treaty and Article 83 contested measure in the main pro­ of the Rules of Procedure, for the ceedings causes it severe harm and may operation of the decision at issue to be lead it to reduce the activity of Ilford suspended. staff assigned to colour films; the measures requested arc therefore necessary and urgent. The measures are Ilford is a member of the Ilford group, urgent in particular because the damag­ of which the parent company is Ilford ing effects of the contested decision will Limited (United Kingdom), which in make themselves felt as soon as stocks of turn is a member of the Ciba-Geigy products affected by the prohibition of group. The Ilford group produces black imports are exhausted. The applicant and white films and completes the range says that it maintains stocks sufficient to of products offered to its customers cover its needs for a period of 60 to 70 with colour films imported from Japan, days. under an agreement concluded with Konishiroku Photo Ind. Co. Ltd, in 1982. In its observations on the application for the adoption of interim measures the Commission, the defendant in the case, contends that the Court should dismiss the application and order the applicant II — W r i t t e n p r o c e d u r e to pay the costs.

establish that the contested- decision is of The defendant disputes the argument individual concern to it within the raised by the applicant to the effect that meaning of Article 173 of the EEC at the time at which the contested Treaty. The inadmissibility of the decision was adopted no protective application in the main proceedings is measures were in force in Italy against itself sufficient ground for the dismissal direct imports of colour films of the type of the application to suspend the in question. In its view the fact that the operation of the decision. previous quota provision for direct imports from Japan ceased to have effect on 30 September 1983 means that from that date onwards imports were completely prohibited. The defendant further argues that in the main proceedings the applicant may at For those reasons the defendant most request the Court to declare void considers that the applicant's request the authorization granted to the Italian does not appear prima facie to be Republic in respect of applications for sufficiently well-founded in law or in import permits which it submitted fact. It argues, moreover, that the between 5 and 20 October 1983, the date applicant has not shown that the measure an article of the contested decision requested is urgently required in order entered' into force. In those circum- to avoid certain damage, since the stances suspension of the operation of arguments raised by the applicant merely the decision would have the same result indicate a risk of possible loss. as a definitive declaration of nullity and would therefore have effects which go beyond the powers of a judge hearing an Ill — Oral procedure application for the adoption of interim measures. The measure requested by the Having been duly summoned, the parties applicant is neither sufficiently distinct presented oral argument at the hearing from the object of the main proceedings of the application for the adoption of nor of an interim nature. interim measures on 26 January 1984.

4 The Commission submits that the application for suspension or for other interim measures, which it considers to be both inadmissible and unfounded, should be dismissed.

Admissibility

5 According to the Commission the application for the adoption of interim measures is, like the main application, inadmissible on the ground that the contested measure, addressed exclusively to the Italian Republic, is not of direct or individual concern to the applicant. It emphasizes that according to the case-law of the Court the fact that the applicant is an importer of the product in question is not sufficient to distinguish it individually as required bv Article 173 of the Treaty.

ORDER OF 1. 2. 1984 — CASE 1/84 R

6 In the course of the oral procedure it was revealed that the applicant had duly submitted applications for import permits on 13 October 1983, that is, before the date on which the contested decision was adopted (20 October 1983) but after the date on which it took effect (9 October 1983). As the Court pointed out in its judgment of 23 November 1981 (Case 62/70, Bock v Commission, [1971] ECR 897), that fact is sufficient to differentiate importers in such a situation from others and to distinguish them individually- just as in the case of the person addressed.

7 Without prejudice to the Court's decision concerning the admissibility of the main application, these findings are sufficient for a conclusion that the application for suspension or for interim measures is admissible.

n At this stage in the proceedings the Commission has not, either in the statement of the reasons on which the decision is based or in the course of these interlocutory proceedings, succeeded in showing satisfactorily that the conditions for the execution of the protective measures referred to in Article 115 are met in this case, and in particular has not shown the existence of any Italian domestic measure of commercial policy taken in accordance with the Treaty.

ORDER OF 1. 2. 1984 — CASE 1/84 R

14 That view gives rise to serious doubts in several respects. The assertion that the Ministerial Decree of 7 January 1983 was adopted in the context of the system established by the Decree of 6 May 1976 finds no support in the recitals in the preamble to the former decree which refer to several legal provisions without making any mention of the latter decree. Moreover the Commission itself, in the recitals in the preamble to the decision contested in the main proceedings, starts from the hypothesis that a quota has been established by the Italian authorities, and does not refer to any other national measure.

15 As a result it is impossible at this stage of the proceedings to find with sufficient certainty that there is a national measure in the sense required by Article 115 of the Treaty.

16 It should be added that even if it had to be accepted, as the Commission suggests, that the Decree of 6 May 1976 constitutes a national measure for the purposes of Article 115 of the Treaty, it is doubtful whether it can be a measure executed in accordance with the Treaty.

17 The Commission itself admits that the prohibition of imports which it says is laid down by the Decree of 6 May 1976 can be in accordance with the Treaty only to the extent to which the system which it establishes is, in its turn, in accordance with Regulation N o 288/82 of 5 February 1982 on common rules for imports (Official Journal, L 3 5of9.2.1982).

18 Article 20 of that regulation expressly requires that any Member State which intends to change a quantitative restriction must inform all the other Member States and the Commission. The Commission has provided no evidence which would establish that the transformation of the quota granted in particular for the period 1 October 1982 to 30 September 1983 into a total prohibition of direct imports into Italy as from the latter date was the subject of such consultation. It follows that, also in the context of Regulation No 288/82, it is not possible to find that after 30 September 1983 there was a national measure taken in accordance with the Treaty, whereas the application of Article 115 is conditional upon the existence of such a measure.

22 It is however necessary to take into account the fact that the supply agreement with the Japanese supplier was concluded relatively recently, in full knowledge of the quantitative restrictions which applied to direct imports into Italy of the products in question. In those circumstances the possibility of recourse by the Commission to Article 115 in order to prevent deflection of trade should have been considered among the risks of the undertaking. That was particularly so since the Commission, in its decision of 19 July 1983, had authorized the placing under surveillance of the products in question.

23 In the light of all the circumstances referred to above, the operation of the contested decision should be suspended to the extent set out below.

ORDER OF 1. 2. 1984 — CASE 1/84 R

On those grounds,

T H E PRESIDENT

by way of interim decision