C-206/87
ECLI:EU:C:1988:542
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- Súdny dvor Európskej únie
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- 61987CC0206
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LEFEBVRE FRÈRE ET SŒUR v COMMISSION
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 14 December 1988 *
Mr President, impending situation for 1987 (which Members of the Court, suggested that the expected imports from those overseas departments and ACP countries would clearly exceed French demand), the French Government feared difficulties for national production and a 1. The case on which I am giving my disruption of the French market if bananas opinion today concerns the admissibility of released into free circulation in other an action brought by a trader against a Member States (for which different trade decision of the Commission authorizing a measures apply) were imported into France. Member State to take protective measures Referring to the importance of banana of a commercial nature. The relevant facts production in the French overseas are as follows. departments, to Article 227 of the EEC Treaty and to the Fourth Protocol to the Third ACP-EEC Convention of 8 December 1984 2 the French Government applied on 30 April 1987, pursuant to Article 3 of Commission Decision A — Facts 80/47/EEC of 20 December 1979, 3 for authorization to take protective measures under Article 115 of the EEC Treaty; more precisely, it sought authorization to exclude from Community treatment bananas orig 2. As the Court has been told, the inating in non-member countries (with the predominant sources of supply for the exception of products from Cameroon, the French banana market are the overseas Ivory Coast and Madagascar) which were departments of Guadeloupe and Martinique released into free circulation in the other and the three ACP countries (Cameroon, Member States. the Ivory Coast and Madagascar) which are France's traditional suppliers. In view of those relationships France applies quanti tative restrictions on imports of bananas from the so-called dollar area, pursuant to Council Regulation No 288/82 on common rules for imports. 1 4. That authorization was granted by a decision of 8 May 1987 4 but it was at variance with the French Government's application in so far as it was limited to bananas from the dollar area (since the 3. Because of production developments Commission did not envisage any danger which took place in the overseas for the French market from products from departments from 1984 to 1986 owing to other ACP countries on account of the increasing investments and in view of the 2 — OJ L 86, 31.3 1986, p 160 * 3 — OJ L 16, 22.1.1980. p. 14. Original language: German I — OJ L 35, 9.2 1982, p. I 4 — OJ C 127, 13 5.1987. p. 4.
OPINION OF MR LENZ —CASE 206/87
limited export capacity in those countries) 9. The question whether the decision chal and the validity of the measure was limited lenged was of direct concern to the applicant to one year, until 30 April 1988, with the need not detain us. I would merely observe reservation that the limitation should be that the decision was doubtless granting the reconsidered if imports from the dollar area French Government a discretionary power came to exceed 15 000 tonnes. for the future. This power entitled, but in no way obliged, the French Government to keep certain bananas off the French market (apparently, as the Court was told, because of market developments, there were none 5. The applicant in this case is a banana the less considerable imports from the dollar importer which has applied unsuccessfully area, which in the autumn of 1987 on many occasions to import bananas into prompted the Commission to adopt a new France, in particular from the Belgian decision with a considerable easing of the market. It considers this decision to be conditions). illegal and has therefore brought an action to have it declared void.
6. The Commission, with the support of the French Government, consider that this view 10. The applicant's argument that the is erroneous. They take the view that the decision simply legalized an existing set of abovementioned decision cannot be the rules cannot be accepted. Whatever the subject-matter of an action brought before position may have been in the past, the the Court by an undertaking such as the disputed decision's legal effects related only applicant. to the future, that is to say in the period after 8 May 1987, up to 30 April 1988 (Article 3 of the decision) unless it was amended earlier (Article 2 of the decision). Moreover, the wording of the disputed decision leaves no room for doubt that the 7. They claim that the application should be defendant did not wish to adopt any dismissed as inadmissible. Consequently, measures itself, but only wished to authorize argument submitted at the hearing on 30 the intervener to do so. This is apparent November was restricted to this issue. I from the title, the preamble and the wording therefore need only consider the question of the disputed decision itself. Finally, the whether or not Lefebvre's application is scope of the French rules was different from admissible. that of the decision which contained the abovementioned limitations.
B — Analysis
11. Consequently, the applicant is 8. Let me say at once that this question undoubtedly wrong to base its argument on must be answered in the negative. the judgment in Joined Cases 106 and
LEFEBVRE FRÈRE ET SŒUR v COMMISSION
5 before the French courts in respect of those 107/63, which in fact only concerned a Commission decision retroactively validating events and the fact that the Commission has a protective measure which had already been informed of them in a complaint, been adopted by a Member State. clearly do not have any such significance.
12. In any event, it is beyond any doubt that the decision was not of individual 14. In reply to its questions, the Court has concern to the applicant within the meaning been told that the applicant is referring in of the Court's case-law. On this point it is this context, on the one hand, to licence only necessary to make it clear that the applications which were made between 1978 decision allowed imports of bananas from and 1980 and most recently in October the so-called dollar area which had been 1986 and, on the other hand, to cases in released into free circulation in another which lorries were turned back at the Member State to be turned back at the frontier which occurred in the autumn of frontier for a period of one year. It was 1986 and in March 1987. therefore clearly of general application and affected any person wishing to carry out such imports, in other words, besides the applicant, other French banana dealers (around 130 importers in France are said to do business with the dollar area) and traders in other Member States, in other words an 15. As regards the licence applications in abstractly drawn category of traders. Thus, question, it should in fact be noted that they it can be said without reservation that the were not pending at the time when the decision challenged affects the applicant in decision at issue was adopted; under French the same way as it affects all other traders, law they had already been dealt with. This as was found in the judgment in Case can be deduced from a judgment of the 231/82 6regarding a decision taken under tribunal de Lille of 19 June 1985, which was Article 115 of the EEC Treaty which in any furnished to the Court, according to which event related to future imports and their after four months a licence application is to prevention. be regarded as having been impliedly rejected. This, therefore, excludes any possi bility of referring to the judgment in Case 62/70 7(in which an important factor was that a decision granting an authorization was to apply to applications for licences 13. However, the circumstances mentioned already pending) and it is also wrong to by the applicant in order to show that the 8 refer to the judgment in Case 100/74, in decision is of individual concern to it, which the Court accepted that measures namely the reference to previous were of individual concern since they applications for licences, previous attempts affected certain traders owing to individual to import goods, proceedings brought behaviour during a certain period.
5 — Judgment of 1 July 1965 in Joined Cases 106 and 107/63 Topfer KG und Getreiaeimportgesellschafl mbH v 7 — Judgment of 23 November 1971 in Case 62/70 Dock v Commission [1965] ECR 405 Commmion [197I1 ECR 897 6 — Judgment of 14 Julv 1983 in Case 231/82 Spijker Kwasten 8 — Judgment of 18 November 1975 in Case 100/74 CAM SA v BV w Commini«» [1983) ECR 2559 Commission [1975] ECR 1393
OPINION OF MR LENZ — CASE 206/87
16. On the other hand, as regards the had no retroactive effect. Therefore, those actual hindering of imports at the French events, which took place well before the frontier on the dates indicated, the only decision entered into force, can have no decisive point is that the disputed decision bearing on the question of admissibility.
C — Conclusion
17. Thus, the only conclusion that may be drawn is that the application must be dismissed as being inadmissible, as the Commission has maintained. Since costs have been applied for, the applicant must also be ordered to pay the costs of the proceedings with the exception of the intervener's costs, since the French Government has not asked for them.