C-160/84
ECLI:EU:C:1984:281
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- Súdny dvor Európskej únie
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- 61984CO0160
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ORDER OF T H E PRESIDENT OF T H E C O U R T 16 JULY 1984 '
Oryzomyli Kavallas OEE and Oryzomyli Agiou Konstantinou G. Raptis — L. Triandafyllidis Kai Sia OE v Commission of the European Communities
Case 160/84 R
Application for the adoption of interim measures — Suspension 'of operation- Commission decision refusing the remission of import duties — Conditions governing the grant of such a measure — Provision of security (EEC Treaty, Arts 185 and 186)
In Case 160/84 R
ORYZOMYLI KAVALLAS OEE, a partnership governed by Greek law, having its registered office at 4 Odos Panagouda, Kavalla, Greece, and ORYZOMYLI AGIOU KONSTANTINOU G. RAPTIS — L. TRIANDAFYLLIDIS KAI SÌA OE, a partnership governed by Greek law, having its registered office in Pernis, Kavalla, Greece,
both represented by Panagiotis Marinos Bernitsas, of the Athens Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, Advocate, 27 Place de Paris,
applicants,
v
COMMISSION OF THE EUROPEAN COMMUNITIES, 200 Rue de la Loi, 1049 Brussels, Belgium, represented by Xenophon Yataganas, a member of its Legal Department, with an address for service in Luxembourg at the office of Manfred Beschel, Jean Monnet Building, Kirchberg, defendant, 1 — Languageof theCase: Greek.
ORDER OF 16. 7. 1984 — CASE 160/84 R
A P P L I C A T I O N for the suspension of o p e r a t i o n of Commission Decision N o E(84)557 of 25 April 1984, declaring that the remission of import duties is not justified in an individual case,
T H E PRESIDENT O F T H E C O U R T O F 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 the applicants that the rate of import levy was not DRA 381 per tonne but DRA 3 811 per tonne, since the applicants had submitted an import licence and not an 1. On 26 August 1981 the applicant advance-fixing certificate. The applicants undertakings,; which wished to import, therefore 'requested that the rice should two consignments of rice of respectively be placed in a customs warehouse in 600 and 400 tonnes from non-member order for the matter to be cleared up by countries, asked the competent depart- the Ministry of Agriculture. ment of the Greek Ministry of Agri- culture what the rate of levy was. They were told that it was DRA 381 per tonne. 4. On the expiry of the statutory period for warehousing, namely two years after the rice was placed in the warehouse, the applicants cleared it through customs: 2. On 27 August 1981, the applicants the rate of levy was DRA 11 487.54 per completed the requisite import-licence tonne. forms. They maintain that they did not fill in box 15 of the licence containing the words "Advance fixing requested: 5. By a request sent to the Commission Yes/No" because they did not on 30 November 1983 (Ref. No K 2905/ understand what it meant. The official at 268), the Ministry of Finance sought a the Ministry of Agriculture whom the remission of import duties pursuant to applicants asked for clarification did not Article 13 of Council Regulation (EEC) understand what it meant either and in No 1430/79 of 2 July 1979 (Official the end completed the form himself by Journal 1979 L 175, p. 1). In its request, marking a cross against " N o " for the the Ministry of Finance indicated that applicants. the conduct of the undertakings in question did not involve any negligence or deception and that the competent 3. When the consignments of rice were departments of the Ministry were imported, the Customs Office informed responsible.
ORYZOMYLI KAVALLAS v COMMISSION
6. Article 13 of Regulation No 1430/79 Treaty to suspend the operation of the provides that import duties may be contested decision. repaid or remitted in situations resulting from special circumstances in which no negligence or deception may be attributed to the person concerned. 9. On 10 July 1984, the applicants received a letter from the Customs Office, Kavala, demanding immediate payment of the import duty, together with the interest accrued since the date 7. By decision dated 25 April 1984 the of the Commission's decision, and Commission refused the request for indicating that the rice would be sold if remission on the following grounds : the sum due was not paid within a short period.
"It is not possible to treat the two firms concerned as if they had requested and obtained advance-fixing certificates. The II — W r i t t e n p r o c e d u r e rate of import levy for rice fluctuated considerably in the period from 26 August 1981 to 27 September 1983. It is 10. In their application for interim not the Community's responsibility to. relief, the applicants claim that the Court bear the commercial risk arising from should suspend the operation of the changes in the rate of import levy during decision at issue, prescribe the measures the period in which the rice remained in provided for by the Rules of Procedure a bonded warehouse. of the Court and order the Commission to pay the costs.
Furthermore, the undertakings acted negligently in embarking on a trans- 11. In support of their application the action involving a comparatively large applicants submit that the contested quantity of rice without obtaining decision is invalid on the grounds of lack sufficient information about the regu- of competence, since the Commission lations in force regarding the system of arrogated to itself the power to import and export licences and advance- determine whether or not negligence was fixing certificates for agricultural pro- involved, in other words to appraise facts ducts. The difference between import which had already been established by licences and advance-fixing certificates is the competent national authorities; in clear merely on a reading of the relevant adopting that decision the Commission Community regulations in force." infringed and misinterpreted Article 13 of Regulation No 1430/79 as amended.
8. By application lodged at the Court 12. If small undertakings, like the Registry on 25 June 1984, the applicants applicants, were required to pay a sum of brought an action for a declaration that DRA 11 452 296, it would undoubtedly the Commission's decision of 25 April cause them serious and irreparable 1984 was void. By a separate document, damage resulting . in their winding-up, lodged at the Court Registry on the since they would be compelled to same day, the applicants made an contract a loan at the current com- application under Article 185 of the EEC mercial interest rate of 2 2 % or more. If
ORDER OF 16. 7. 1984 — CASE 160/84 R
they did not pay the said amount, a operation of its decision. On the other penalty payment of 100 % of the duty hand, the furnishing of a bank guarantee demanded would be imposed on them. for DRA 11 000 000 might have been a ground for granting their application. Finally, the amount due could be paid by instalments or other arrangements could be made. 13. The Commission contends that the Court should dismiss the application to suspend the operation of its decision and 15. As regards the substance of the reserve the costs. It takes the view that dispute, the Commission submits that Greece should pay that amount into the ignorance of the Community regulations budget of the Community and that the is a clear case of negligence which does question who should ultimately bear the not even need to be proved. Even if amount is a wholly internal matter for mistakes of administrative agencies were Greece, particularly since the central considered to constitute one of the authorities of the Greek administration special cases provided for by Article 13, have recognized that the authorities of the Commission takes the view that the that administration bear a degree of conduct of the Greek authorities was responsibility. However, the Commission irreproachable in this instance, since such has decided not to raise an objection of authorities may not be expected to do inadmissibility on that account. things on their own initiative which have not been expressly requested by those concerned.
14. As regards the question whether the measure applied for is justified, the Ill — Oral procedure Commission argues that the risk of winding-up invoked by the applicants is an admission that they may be insolvent, 16. Having been duly summoned, the which might provide grounds for parties presented oral argument at the rejecting an application to suspend the hearing on 13 July 1984.
Decision
1 T h e applicants in the main proceedings b r o u g h t an action on 25 J u n e 1984 for a declaration that Commission Decision N o E (84) 557 of 25 April 1984, declaring that the remission of import duties in an individual case is n o t
ORYZOMYLI KAVALLAS v COMMISSION
justified, is void. At the same time they also lodged an interlocutory application for an interim measure suspending the operation of that decision.
2 At the hearing they argued, without being contradicted on this point by the Commission, that under Greek law they had no possibility of applying for the suspension of operation of the Greek Government's decision to demand payment of the import duties. They are therefore compelled to apply to the Court of Justice in order to obtain a measure having an equivalent effect.
3 According to 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 circumstances so require, order that application of the contested act be suspended. It may also, by virtue of Article 186 of the EEC Treaty, prescribe any necessary interim measures.
4 The documents before the Court show that on 30 November 1983 the Greek Ministry of Finance requested the Commission, in accordance with Article 13 of Regulation N o 1430/79, to allow the import duties payable by the applicants to be remitted on the ground that, as a result of negligence on the part of the national authorities, the applicants had not applied for advance fixing of the duties. According to the Greek Ministry of Finance, the applicants were not guilty of negligence but were misled by the conduct of the Greek administration.
5 By its decision of 25 April 1984, the Commission rejected that application on the ground that the applicants had acted negligently.
6 Although at this stage in the case it is not possible to form a definite view with regard to the legality of the contested decision, it cannot be ruled out that, in view of the fact that the national authorities have accepted responsibility for the omission at issue, the Commission's decision might be declared void in the main proceedings.
O R D E R O F 16. 7. 1984 — CASE 160/84 R
7 The letter of 10 July 1984 from the Customs Office, Kavala, declaring that the imported rice will be sold unless payment is made within a short period, shows beyond doubt that suspension of the operation of the decision is a matter of urgency.
8 On the question whether the damage which would arise from the operation of the decision would be irreparable, the applicants contend, without, however, having provided convincing evidence in support of their contention, that if they were compelled to pay a sum of DRA 11 452 296, they would suffer irreparable damage which would result in their being wound up.
9 Although no proof has been adduced in that regard, the matter is so urgent that it is necessary to ensure that payment of the import levy is not demanded within too short a period. That period may be extended to 1 November 1984. In order to obtain an extension of that measure the applicants will have to make a further interlocutory application to the Court before that date, provided that they are then able to prove the damage which they allege.
io However, since the Commission has argued that the customs duties owed would not be paid to it by the Greek Government if the applicants became insolvent, they must be required to provide a bank guarantee valid until 1 November 1984 to secure the payment of import duties. The applicants have not in fact adduced any arguments showing special reasons for setting aside the reasonable condition to which the Commission wishes the suspension to be subject during that period.
On those grounds,
T H E PRESIDENT,
by way of interim decision,
hereby orders as follows:
ORYZOMYLI KAVALLAS v COMMISSION
1. The Commission shall inform the Greek authorities that the import levy in question is not to be demanded before 1 November 1984 provided that the applicants lodge with the said authorities a bank guarantee securing the payment of the disputed sum at that date;
2. The costs are reserved.
Luxembourg, 16 July 1984.
J. A. Pompe A. J. Mackenzie Stuart Deputy Registrar President