C-257/93

ORDER OF 21. 6. 1993 — CASE C-257/93

because of a factual situation which dif­ bananas from third countries in the same ferentiates them from all other persons way as any other trader in an identical and distinguishes them individually in the position. same way as a person to whom it is addressed.

2. The action for damages provided for A regulation which establishes arrange­ under Article 178 and the second para­ ments for trade in bananas with non- graph of Article 215 of the Treaty was member countries and a mechanism for introduced as an autonomous form of the allocation of the tariff quota between action, with a particular purpose to fulfill categories of traders defined according to within the system of actions and subject objective criteria applies to situations to conditions on its use dictated by its which have been determined objectively specific purpose, and hence a declaration and has legal effects as regards categories of inadmissibility of the application for of persons viewed in a general and annulment of a regulation does not auto­ abstract manner. It is of concern to the matically render inadmissible the action applicants only in their objective capacity for damage for the harm allegedly caused as traders engaged in the marketing of by the adoption of that regulation.

ORDER OF THE COURT 21 June 1993 *

In Case C-257/93,

1. Leon Van Parijs, a company governed by Belgian law, established in Antwerp (Belgium),

5. Velleman & Tas, a company governed by Netherlands law, established in Rot­ terdam (Netherlands),

6. Banana Marketing Belgium, a company governed by Belgian law, established in Antwerp (Belgium),

7. Jan Van Den Brink, a company governed by Netherlands law, established in Rotterdam (Netherlands),

represented by P. Vlaemminck and J. Holmens, of the Bar of Ghent (Belgium), with an address for service in Luxembourg at the Chambers of R. Diederich, 8 Rue Zithe,

applicants,

1. Council of the European Communities

ORDER OF 21. 6. 1993 — CASE C-257/93

THE COURT,

composed of: O. Due, President, C. N . Kakouris, C. N . Kakouris, G. C. Rodríguez Iglesias and M. Zuleeg (Presidents of Chambers), R. Joliet, F. A. Schockweiler, J. C. Moitinho de Almeida, F. Grévisse and P. J. G. Kapteyn, Judges,

Advocate General: C. Gulmann, Registrar: J.-G. Giraud,

after hearing the Opinion of the Advocate General,

makes the following

'A tariff quota of two million tonnes (net weight) shall be opened each year for imports of third-country bananas and non-traditional ACP bananas.

Within the framework of the tariff quota, imports of third-country bananas shall be subject to a levy of ECU 100 per tonne and imports of non-traditional ACP bananas shall be subject to zero duty ...'.

Pursuant to Article 18(2):

'Apart from the quota referred to in paragraph 1:

— imports of non-traditional ACP bananas shall be subject to a levy of ECU 750 per tonne,

— imports of third country bananas shall be subject to a levy of ECU 850 per tonne'.

(c) 3.5 % to the category of operators established in the Community who started marketing bananas other than Community and/or traditional ACP bananas from 1992...·.

The applicants claim that the provisions of Regulation No 404/93 concerning the imposition of a tariff quota on the import of bananas from non-member countries and the division of that quota between operators who marketed third country and/or non-traditional ACP bananas and operators who marketed Community and/or traditional ACP bananas have a direct and individual effect on them and that those provisions are unlawful and cause them loss.

Under Article 92(2) of the Rules of Procedure, the Court may, at any time, of its own motion, consider whether there exists an absolute bar to proceeding with a case and give its decision in accordance with Article 91(3) and (4) without opening the oral procedure.

Since the documents submitted to the Court contain all the information necessary to enable it to give a ruling on the admissibility of the action for annulment, the Court has decided to determine that issue without hearing oral argument from the parties.

The second paragraph of Article 173 of the Treaty enables any natural or legal per­ son to institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

Since this application seeks the annulment of provisions of a regulation, it is nec­ essary to determine whether the contested measures are of direct and individual concern to the applicants.

1-3341

ORDER OF 21. 6. 1993 — CASE C-257/93

It follows that the contested measure is of concern to the applicants only in their objective capacity as traders engaged in the marketing of bananas from third coun­ tries in the same way as any other trader in an identical position.

In those circumstances the application must be rejected as inadmissible in so far as it seeks the annulment of the contested provisions of Regulation No 404/93.

In so far as the action for damages is concerned, it must be noted that the action provided for under Articles 178 and 215 of the Treaty was introduced as an auton­ omous form of action, with a particular purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific purpose, and hence a declaration of inadmissibility of the application for annulment does not automatically render the action for damages inadmissible (see, in particular, Case 5/71 Schöppenstedt v Council [1971] ECR 975).

The action continues, therefore, in so far as it seeks an order requiring the Euro­ pean Economic Community to make good the damage caused by the adoption of Regulation No 404/93.

hereby orders:

1. The application is dismissed as inadmissible in so far as it seeks the annul­ ment of certain provisions of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas;

2. The action continues in so far as it seeks an order requiring the European Economic Community to make good the damage caused by the adoption of Regulation No 404/93;

3. The costs are reserved.

Luxembourg, 21 June 1993.

J.-G. Giraud O . Due