C-389/93

The request for a preliminary ruling before the Court in the present case raises a number of questions concerning the interpretation of With this objective in view, Title IV of the Commission Regulation (EEC) No regulation (Articles 15 to 20) sets out 1442/93 of 10 June 1993 laying down arrangements for trade with third countries. detailed rules for the application of the Under Article 18, a tariff quota is to be arrangements for importing bananas into the opened each year for imports of third- Community. 2 The questions centre in par­ country bananas and 'non-traditional A C P ticular on how Article 2(c) of Regulation N o bananas', that is to say, bananas imported 1442/93 (Operators who commenced mar­ from A C P States in excess of the quantities keting bananas ... as from 1992 or thereafter') listed in an annex to the regulation which is specifically to be interpreted. have traditionally been exported by each of those States. 3 The tariff quota is fixed each

* Original language: Danish. 1 — OJ 1993 L 47, p. 1. 2 — OJ 1993 L 142, p. 6. 3 — See Article 15(1) and (2) of the regulation.

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OPINION OF MR ELMER — CASE C-389/93

year at 2 million tonnes net weight and was (c) 3.5% to the category of operators estab- set for the second half of 1993 at 1 million lished in the Community who started 4 tonnes net weight. Within the tariff quota, a marketing bananas other than Commu- levy of E C U 100 per tonne is imposed on nity and/or traditional A C P bananas imports of bananas from third countries, from 1992'. while imports of non-traditional ACP bananas are subject to a zero duty. Bananas imported outside the tariff quota are subject to a levy of E C U 750 per tonne (in the case of imports from ACP States) or E C U 850 per tonne (in the case of imports from third countries). Article 15(5) of the Council regulation defines the verb 'market' as follows:

Under Anicie 19(2) of the regulation, the ant to paragraph 1(c), each application shall size of each import licence for operators be reduced by an equal percentage. coming under Article 19(l)(a) and (b) is determined on the basis of the average quan­ tities of bananas sold by the operator in question in the three most recent years for which figures are available. For the second half of 1993, each operator was issued licences on the basis of half of the annual average quantity marketed between 1989 and 1991.

The use of the term 'new operators' in Arti­ cle 19(3) as synonymous with operators coming under Article 19(l)(c) must be con­ sidered in the light of the thirteenth recital in the preamble to the regulation, in which the 5. With regard to operators coming under Council stresses that the tariff quota must Article 19(l)(c), Council Regulation make a quantity available for '... new opera­ N o 404/93 does not — as in the case of oper­ tors who have recently embarked on com­ ators coming under Article 19(l)(a) and (b) mercial activity or are about to embark on — contain any provisions to the effect that commercial activity in this sector'. the import opportunities under this category are available only to operators who had pre­ viously marketed bananas under certain con­ ditions.

6. The third subparagraph of Article 19(1) contains the following provision:

The size of each import licence for operators coming under Article 19(l)(c), in contrast, is 'Supplementary criteria to be met by opera­ determined solely on the basis of the volume tors shall be laid down in accordance with of applications. In this connection, Article the procedure provided for in Article 27. The 19(3) provides as follows: Member States shall draw up the list of importers and the average quantity per oper­ ator referred to in paragraph 2'.

8. The Commission was required under the (c) 35 000 tonnes for the category of opera- second paragraph of Article 20 of the regu- tors who commenced 5 marketing lation to adopt detailed rules for implement- bananas other than Community bananas ing Title IV in accordance with the pro- and/or traditional A C P bananas as from cedure laid down in Article 27. Those 1992 or thereafter, hereinafter referred to provisions were set out in Commission as "Category C".' Regulation N o 1442/93 of 10 June 1993 lay- ing down detailed rules for the application of the arrangements for importing bananas into the Community ('the implementing regu- 5 -— The German version of the implementing regulation uses the phrase 'die 1992 oder später mit der Vermarktung ... begon- lation'). nen haben ...' (emphasis added).

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DÜRBECK

Article 3 of the implementing regulation 3. The minimum quantity referred to in the provides as follows: 6 second subparagraph of Article [19] (1) of Regulation (EEC) N o 404/93 ... shall be 250 tonnes ...'

' 1 . Economic agents ... shall be deemed "operators" in Category A and/or Catego- With regard to the possibility for operators ry B for the purposes of Articles 18 and to transfer rights under import licences 19 of Regulation (EEC) N o 404/93 and may within the tariff quota, Article 13(1) and (2) hold import licences where they have of the implementing regulation contains the engaged in one or more of the following following rules: activities on their own account:

(a) the purchase of green third-country 'Rights accruing from import licences ... may and/or A C P bananas from the producers, be transferred by the holder ... in accordance or where applicable, the production, con- with the conditions set out below. signment and sale of such products in the Community;

2. Transfers of rights by Category C opera- Category C operators registered with them tors to operators in Categories A and/or by 25 June 1993.' B shall not be permitted.'

9. The Commission's implementing Regu- lation N o 1442/93 was supplemented b y The provisions which follow in the transi- Commission Regulation (EEC) No tional regulation deal with, inter alia, the 1443/93 of 10 June 1993 on transitional mea- verification of the reference quantities sub- sures for the application of the arrangements mitted by Category A and B operators and for importing bananas into the Community the procedure for calculating their provi- in 1993 ('the transitional regulation'), 7 Arti- sional import quotas on the basis of the ref- cle 2 of which is couched in the following erence quantities. The transitional regulation terms: does not contain any corresponding rules on the verification and application of reference quantities in calculating provisional import quotas for Category C operators.

' 1 . Category A and Category B operators, as defined in Regulation (EEC) N o 1442/93, shall make their applications for registration and the competent authorities of the Mem- The facts of the case ber States shall establish lists of operators in the manner described in Article 4, para- graphs 1, 2 and 3 of the said Regulation, by 7 July 1993. Operators shall provide infor- mation on the volume of bananas they mar- keted in the years 1989, 1990 and 1991.

1. Is there any technical difference between the definition of Category C operators Against this, the Bundesamt für Ernährung contained in Article 2(c) of Commission und Forstwirtschaft has argued that the Regulation (EEC) N o 1442/93 and the Community-law rules at the material time definition contained in Article [19(l)(c)] did not impose any requirements for the of Regulation (EEC) No 404/93, which allocation of licences to import bananas defines Category C operators as those under Category C other than proof by the who "started" marketing bananas other undertaking in question, by its application than Community bananas and/or tradi- for registration as a Category C operator, of tional ACP bananas from 1992, and its intention to operate as a banana importer. wherein does such difference, if any, lie?

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OPINION OF MR ELMER — CASE C-389/93

2. Is it also possible to regard as operators 4. May economic operators who entered within the meaning of Article 2(c) of into business prior to 1992 with a view to Regulation (EEC) N o 1442/93 and/or the importation of the bananas specified Article 19(l)(c) of Regulation (EEC) N o in Article 2(c) of Regulation (EEC) N o 404/93 those applicants who 1442/93 and imported those bananas in 1992 or later be registered as Category C operators?

— apply for registration pursuant t o Article 2(2) of Regulation (EEC) N o 5. Is Article 3(2) of Regulation (EEC) N o 1443/93 with a view to transferring 1442/93 applicable to Article 2(c) of the licences to other Category C oper- Regulation (EEC) N o 1442/93?' ators;

15. The Commission, along with the Ger­ man and Spanish Governments, argues that neither the Council regulation nor the imple­ For that reason I consider it appropriate to menting regulation imposes any require­ address these questions together. ments on persons applying for a Category C import licence other than that they have marketed bananas or have indicated, by sub­ mitting their application for an import licence, their intention to market bananas. Question 1, Question 2, third indent, and Question 3

In my view, conclusive weight ought to be attached to the purpose behind Article 19(l)(c), as stated in the thirteenth recital in the preamble to the regulation. This states that the tariff quota must leave a quantity for 'new operators who have recently embarked However, despite the fact that it is thus pos- on commercial activity or are about to sible to infer some temporal limits as to embark on commercial activity in this sec- when the condition must have been satisfied, tor'. The fact that this statement of purpose there still remains a problem of interpreta- refers to Article 19(l)(c) emerges clearly tion concerning the specific content of the from its use of the term 'new operators', condition, namely the specific meaning of which is used in Article 19(3) as a synonym the phrase 'started marketing'. In particular, for the operators coming under Article it is necessary to consider whether particular 19(l)(c). requirements are imposed in that regard, as argued by Anton Dürbeck GmbH, or whether it is sufficient, as submitted by the Commission and the German and Spanish Governments, that the operator in question has, by submitting his application for an import licence, indicated his intention t o market bananas.

In line with this, the fourteenth recital in the preamble states that the organization of the market must not only counteract disruption to existing commercial links but must also allow some development of marketing struc- In order to examine this issue it is necessary, tures. N o such development would be possi- in keeping with the Court's settled case- ble if only operators already established in the sector were entitled to a share of the tar- iff quota under Category C.

It is entirely consistent with this line of rea- recital, which through the use of the expres- soning that the size of every import licence sion 'adopting additional criteria' points to for operators coming under Article 19(l)(c) the similar expression in the first sentence of should be determined in accordance with the third subparagraph of Anicie 19(1), Article 19(3) of the Council regulation on merely states that the Commission must take the basis of the number of applications for account of the principles set out in the recital licences, resulting, if necessary, in a propor- when adopting additional criteria. So long as tionate reduction in the quantity for which such additional criteria have not been import licences may be issued. In this regard, adopted, the recital does not therefore have the scheme of Category C departs apprecia- any separate significance. bly from that of Category A and B opera- tors, which is designed to counteract disrup- tion to existing commercial links. In the case of Categories A and B, import licences are issued pursuant to Article 19(2) on the basis of the average quantities of bananas which an 17. There is, in my view, no basis for assum- operator has sold in the three most recent ing that the implementing regulation was years for which figures are available, and in designed to impose additional requirements these categories it is even required that a cer- on Category C operators. 1 0 Article 2(c) of tain minimum quantity be marketed (second that regulation uses an expression corre- subparagraph of Article 19(1)). sponding to the expression 'started market- ing', which Article 19(l)(c) uses in all ver- sions of the Council regulation other than the German. I refer to my previous com- ments on the interpretation of the corre- sponding expression in the Council regu- lation. The implementing regulation also contains special requirements only in respect of Categories A and B, but not Category C, In my opinion, it must be assumed, in the concerning the extent of previous marketing. light of the purpose and general scheme of The same holds true of the transitional regu- the regulation, that no requirement is lation. n imposed on new operators coming under Article 19(l)(c) of the regulation other than that they must, in 1992 or later, have embarked on commercial activity or be about to embark on commercial activity within the sector in question.

21. Anton Dürbeck G m b H has submitted that an operator who applies for an import licence solely in order to transfer it to 19. The reply to Question 1, Question 2, another party fails to satisfy the require­ third indent, and Question 3 should on this ments which the above provisions impose on basis be that Article 19(l)(c) of Council operators. Regulation N o 404/93 on the common orga­ nization of the market in bananas and Article 2(c) of Commission Regulation No 1442/93 laying down detailed rules for the application of the arrangements for import­ ing bananas into the Community are to be understood as meaning that an operator coming under those provisions must, in 1992 or later, have embarked on commercial activity or have indicated, by submitting his 22. Against this, the Commission, along application for an import Učence, his inten­ with the German and Spanish Governments, tion to embark on commercial activity contends that the rules governing transfer of within the banana sector. import licences, contained in Article 13 of the implementing regulation, exhaustively cover the question of Učence transfer, with the result that an import Učence cannot be refused even if it transpires that the applicant intends to transfer it to a third party. Question 2, first and second indents

20. In Question 2, first and second indents, 23. As already stated, an operator must, in the national court requests the Court to order to obtain an import licence as a Cate­ determine whether an application for a Cat­ gory C operator, have embarked, in 1992 or egory C import licence must be rejected if later, on commercial activity or have indi-

At the time material to this case neither the Council regulation nor the implementing regulation 1 2 contained any other provisions 24. The answer to Question 2, first and sec­ ond indents, must therefore be that an appli­ cation for an import licence cannot be 12 — See footnote 6. refused on the ground that the applicant has

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OPINION OF MR ELMER — CASE C-389/93

submitted his application with the sole pur- operator has, prior to 1992, 'marketed' pose of transferring the licence to another bananas as specified in the rules of the regu- party. lations concerning Category A and must therefore, if appropriate, be registered in that category.

Question 4

27. There is, on this point, agreement among those who have submitted observations to the Court that simply entering into business with a view to importing bananas is insuffi- 25. In Question 4 the national court seeks cient to justify a finding that an operator has clarification as to whether operators who 'marketed' bananas within the meaning entered into business prior to 1992 with a attached to that expression by the above- view to importing the bananas specified in mentioned regulations. Article 2(c) of Regulation N o 1442/93 and imported those bananas in 1992 or later may- be registered as Category C operators.

29. For those reasons I propose that the Categories A and B, and point out that Arti­ Court's reply to Question 4 should be that cle 3(2) features in Tide I of the implement­ an operator's entry into business prior to ing regulation concerning detailed rules for 1992 with a view to importing bananas in the application of the tariff quota arrange­ 1992 or later is not in itself sufficient to jus­ ments which cover all three categories of tify a finding that the operator in question, operators. prior to 1992, 'marketed' bananas within the meaning attached to that expression by the above regulations so far as concerns Catego­ ry A and B operators, and that the operator in question can if appropriate be registered in Category C, provided that the other rele­ vant conditions have been satisfied. 32. The Commission and the Spanish Gov­ ernment take the view that Question 5 should be answered in the negative in so far as Article 3(2), by virtue of its position and wording, can relate only to operators in Cat­ egories A and B. Question 5

33. It is, admittedly, correct that Article 3(2), according to its wording, is not restricted to 30. By Question 5 the national court seeks a operators in Categories A and B, but rather ruling by the Court as to whether Article appears generally to mention a number of 3(2) of the implementing regulation — which forms of undertaking which are not to be provides that wholesalers and retailers are regarded as 'operators', an expression used in not to be considered as operators by virtue both the Council regulation and the imple­ solely of such activities — has any bearing menting regulation to apply also to Catego- on the definition of the concept of operator ryC. in Article 2(c) of the regulation.

34. It may also be appropriate to bear in mind that it has been assumed in the replies to the above questions that Categories A and B are to be narrowly defined, in contrast to Category C, in which it may be sufficient that the operators in question intend to embark on commercial activity within the 36. I am aware that Article 15(5) of the banana sector. Council regulation defines the terms 'mar- ket' and 'marketing' as meaning 'placing on the market, not including making the prod- uct available to the final consumer'. When Article 19(l)(c) of the Council regulation defines operators for whom Category C is open as those who 'started marketing' cer- tain types of banana from 1992, it might be argued that it must follow from this that undertakings involved in retail business An interpretation under which Article 3(2) alone are not covered by Article 19(l)(c) of imposes certain restrictions as to who may the regulation, which after all refers to 'oper- be deemed to be Category A or B operators, ators ... who started marketing ... from 1992'.

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DŪRBECK

As stated above, however, it is, in relation to arate significance for operators who submit Category C, not only of importance what an application for an import licence under marketing the operator in question has been Category C. engaged in, but also whether that operator is about to embark on commercial activity in the banana sector. Submission of an applica­ tion for an import licence under Category C may also in my opinion — as the rule pro­ vided at the period material to this case — 1 3 37. I propose that the Court's reply to be regarded as sufficient to establish this (see Question 5 should be that Article 3(2) of point 18 above). The definition in Article Commission Regulation N o 1442/93 is not 15(5) does not therefore — for the same rea­ applicable to operators coming under Article son as set out in point 35 — acquire any sep­ 2(c) of that regulation.

OPINION OF MR ELMER — CASE C-389/93

— A n operator's entry into business prior to 1992 with a view to importing bananas in 1992 or later is not in itself sufficient to justify a finding that the operator in question, prior to 1992, 'marketed' bananas within the meaning attached to that expression by the above regulations so far as concerns Cate- gory A and B operators, and the operator in question can if appropriate be registered in Category C, provided that the other relevant conditions have been satisfied.

— Article 3(2) of Commission Regulation (EEC) N o 1442/93 is not applicable to operators coming under Article 2(c) of that regulation.

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