T-489/93

UNIFRUrr HELLAS v COMMISSION

J U D G M E N T O F T H E C O U R T O F FIRST INSTANCE (Third Chamber) 15 December 1994"

In Case T-489/93,

Unifruit Hellas EPE, a company governed by Greek law, established in Athens, represented by Ilias Soufleros, of the Athens Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

applicant,

v

p. 9) and N o 1467/93 of 15 June 1993 (OJ 1993 L 144, p. 11), all amending Regu- lation (EEC) N o 846/93, are void and (ii) an order for damages against the Com- mission,

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Third Chamber),

composed of: J. Biancarelli, President, C. P. Briët and C. W. Bellamy, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 22 September 1994,

gives the following

2 The purpose of a countervailing charge is to protect a certain level of prices for fruit and vegetables on the Community market. To that end, Article 23 of Regulation N o 1035/72 provides that a reference price is to be fixed each year for each prod- uct covered by the common organization of the market in fruit and vegetables 'in order to obviate disturbances caused by offers from third countries at abnormal prices'. Article 25(1) of Regulation N o 1035/72 provides: 'If the entry price of a product imported from a third country remains at least 0.60 E C U below the ref- erence price for two consecutive market days, a countervailing charge shall be introduced in respect of the exporting country concerned, save in exceptional cir- cumstances. This charge shall be equal to the difference between the reference price and the arithmetic mean of the last two entry prices available for that exporting country (hereinafter called the "average entry price"). This average entry price shall then be calculated each market day for each exporting country until, in respect of that exporting country, the charge is withdrawn.' The entry price referred to in that provision is, under Article 24(3) of the same regulation, the market price for prod- ucts imported from non-member countries, calculated on the basis of the average of the lowest representative prices recorded for at least 30% of the quantities con- cerned which are marketed on all representative markets.

3 The countervailing charge, which is the same for all Member States, is levied in addition to the customs duties in force (Article 25(3) of Regulation N o 1035/72). Changes in the items used to calculate it are not to be taken into account 'unless they result in a change over three successive market days of more than 1.2 E C U ' and it is withdrawn if the entry price has been at least equal to the reference price for two consecutive market days (Article 26(1) of Regulation N o 1035/72).

allows recourse to protective measures — for, inter alia, apples — if 'the with- drawal or buying-in operations ... concern significant quantities'. Article 3(1) of Regulation (EEC) N o 2707/72 of the Council of 19 December 1972 laying down the conditions for applying protective measures for fruit and vegetables (OJ, English Special Edition 1972 (28-30 December), p. 3) provides that protective mea- sures may include the suspension of imports or exports or the levying of export taxes. In the case referred to in the second indent of Article 29(1) of Regulation N o 1035/72, those measures may include 'the suspension of imports or the levying of an additional amount equal to 50% of the difference between the basic price and [a ceiling set for the withdrawal price] . This additional amount shall be added to the customs duties and to the countervailing charges, if any, which may have been introduced pursuant to Article 25 of Regulation (EEC) N o 1035/72.'

5 Finally, Article 3(3) of Regulation No 2707/72 provides that protective measures 'shall take account of the special position of products in transit to the Community. They shall apply only to products exported from, or intended for, third countries. They may be limited to products exported from, originating in or intended for cer- tain countries, or to certain qualities, size grades or groups.'

6 O n 19 February 1993, the Commission adopted Regulation (EEC) N o 384/93 introducing special surveillance of imports of apples from third countries (OJ 1993 L 43, p. 33). That regulation is based on Article 29 of Regulation N o 1035/72. Under Article 1 of Regulation N o 384/93, the release of apples before 1 September 1993 for free circulation within the Community is to be subject to the presentation of an import licence. Article 2(1) of the same regulation provides that the import licence is to be issued subject to the lodging of a security of E C U 1.5 per 100 kg net and that the security is to be forfeit in whole or in part if, during the period of validity of the licence, the quantities stated in the licence are not released for free circulation or are released for circulation in part only.

io Those apples were loaded on board two ships in the port of Valparaiso, Chile, to be shipped to Greece. The applicant states that the first ship left Chile on 25 March 1993 and arrived in Greece on 18 April 1993; the second left Chile on 13 April 1993 and reached Greece on 6 May 1993.

1 1 The applicant further states that it applied to the Greek intervention agency for import certificates on 18 March 1993. The countervailing charge introduced by

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Regulation N o 846/93 of 7 April 1993, as amended by Regulations Nos 915/93, 1396/93 and 1467/93, was applied to the apples imported by the applicant.

i2 Those were the circumstances in which, by application registered at the Court of Justice on 30 June 1993, the applicant brought the present proceedings.

i6 The applicant claims that the Court should:

(i) declare void, or inapplicable as against the applicant, Regulations Nos 846/93, 915/93, 1396/93 and 1467/93;

(ii) declare that the European Economic Community must compensate the appli- cant for the entire past and future loss (actual loss and loss of profit) incurred by it as a result of the illegal provisions in the abovementioned regulations or as a result of any decision or other act adopted pursuant thereto; and that the Community must determine the amount of that compensation, to include both the loss already incurred, estimated at D R 104 614 783, together with interest at the borrowing rate, and any future loss caused by the illegal and detrimental acts of the Commission, the precise amount of which the applicant reserves the right to specify in the future, the above damages to bear interest at the rate prescribed by law from the date on which the application was lodged;

(iii) take any other measure which it considers necessary or appropriate; and

(iv) order the Commission to pay the costs.

i7 The Commission contends that the Court should:

The claims based on Article 173 of the EEC Treaty

is The Commission considers that the claim for the annulment of Regulations Nos 846/93, 915/93, 1396/93 and 1467/93 are manifestly inadmissible because the con- tested measures are regulations of general application which affect all traders in fresh fruit in the Community. The Commission points out that countervailing charges are imposed in an almost mathematical manner whenever the reference price reaches a certain level in comparison with that on the representative markets and considers that, in any event, the regulations in issue are not of direct and indi- vidual concern to the applicant.

i9 The applicant maintains that it is directly concerned by those regulations inasmuch as they require the national authorities, without allowing them any discretion in the matter, to impose a countervailing charge on the products in question. It fur- ther considers, referring to the judgment of the Court of Justice in Case C-152/88 Sofrimport v Commission [1990] ECR 1-2477, that it is individually con- cerned by the regulations because it was one of a restricted group of importers which was sufficiently well defined in relation to any other importers by the fact that the apples purchased on the Chilean market had been the subject of the sur- veillance measures introduced by Regulation N o 384/93 and were, moreover, in transit to the Community.

20 The Court considers that it is clear from consistent case-law (see, in particular, the judgment of the Court of Justice in Case 26/86 Deutz und Geldermann v Council [1987] ECR 941, paragraph 6) that the second paragraph of Article 173 of the

2i It is also settled case-law that the fact that it is possible to determine more or less exactly the number or even the identity of the persons to whom a measure applies at any given time is not sufficient to call into question the legislative nature of the measure, as long as it is established that it applies to them by virtue of an objective legal or factual situation defined by the measure in question in relation to its pur- pose (see the judgments of the Court of Justice in Case 64/69 Compagnie Française Commerciale et Financière v Commission [1970] ECR 221, paragraph 11; Case 101/76 Koninklijke Scholten Honig v Council and Commission [1977] ECR 797, paragraph 23; Case 123/77 UNICME v Council [1978] ECR 845, paragraph 16; Calpak, cited above, paragraph 9; Case 242/81 Roquette Frères v Council [1982] ECR 3213, paragraph 7; Deutz und Geldermann, cited above, paragraph 8; Joined Cases C-15/91 and C-108/91 Buckland Others v Commission [1992] E C R 1-6061, paragraph 25; Case C-213/91 Abertal v Commission [1993] ECR 1-3177, paragraph 17; and Case C-309/89 Codorniu v Council [1994] ECR 1-1853, paragraph 18; and the order in FRSEA and FNSEA, cited above, paragraph 19). In order for a mea- sure of general application adopted by a Community institution to be of individual concern to traders, it must affect their legal position because of a factual situation which differentiates them from all other persons and distinguishes them individu- ally in the same way as a person to whom it is addressed (see the judgments of the Court of Justice in Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 107, and in Codorniu, cited above, paragraph 20; the order of the Court of Justice in Case C-257/93 Van Parijs and Others v Council and Commission [1993] ECR 1-3335, paragraph 9; and the order in FRSEA and FNSEA, cited above, paragraph 20).

24 The applicant, referring to the judgment in Sofrimport, cited above, maintains that it is sufficiently distinguished individually by the fact that its goods were already in transit to the Community at the time when the contested regulations introduced the countervailing charge but that argument cannot be accepted. In the Sofrimport case, the applicant sought, inter alia, the annulment of Commission Regulation (EEC) N o 962/88 of 12 April 1988 suspending the issue of import licences for des- sert apples originating in Chile (OJ 1988 L 95, p. 10) and of Commission Regula- tion (EEC) N o 984/88 of 14 April 1988 amending Regulation N o 962/88 (OJ 1988 L 98, p . 37). The Court of Justice held that the applicant was in the position referred to in Article 3(3) of Regulation N o 2707/72 which requires the Commis- sion, in adopting such protective measures, to take account of the special position of products in transit to the Community. Importers whose goods were in transit to the Community when the measure was adopted thus constituted, in the Court's view, a closed and restricted group which was sufficiently well defined in relation to any other importer of Chilean apples. The Court also considered that because the said Article 3(3) gave specific protection to those importers, they must be able to enforce observance of that protection and bring legal proceedings for that pur- pose. It therefore held the action for annulment to be admissible in so far as it challenged the application of protective measures to products in transit to the Community.

27 The Court further considers that the fact that the apples purchased by the appli- cant were the subject of the surveillance measures provided for in Regulation N o 384/93 is also not such as to distinguish the applicant individually from any other importer of apples. In that regard, it should be borne in mind that the purpose of the measures introduced by Regulation N o 384/93, the legality of which is not contested in the present case, was the surveillance of all imports of apples into the Community, regardless of their origin, and that those measures thus affected the applicant in the same way as any other importer of apples. In those circumstances, the applicant cannot argue that, by reason of the application of the surveillance measures provided for in Regulation N o 384/93, its legal position is affected by the regulations introducing and amending the countervailing charge in the same way as a person to whom an individual decision is addressed.

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JUDGMENT OF 15. 12. 1994 — CASE T-489/93

28 Thus, even on the assumption that it were proven that the applicant's goods were in transit to the Community at the time when Regulation N o 846/93 was adopted, the applicant would still not be individually concerned by that regulation or by the other regulations amending it, adopted subsequently.

29 In those circumstances, without there being any need to inquire whether the appli- cant is directly concerned by the contested regulations, the application must be dismissed as inadmissible in so far as it seeks the annulment of Regulations Nos 846/93, 915/93, 1396/93 and 1467/93.

Substance

Preliminary considerations

33 The applicant argues that the acts and omissions of the Commission on which it bases its pleas in support of its claim for annulment were wrongful acts and omis- sions which caused it serious damage for which it seeks compensation. In the claim formulated in its application, it assessed the damage suffered at D R 104 614 783, to bear interest at the borrowing rate and at the rate prescribed by law from the date on which the application was lodged.

34 In support of its claim for annulment, the applicant has submitted six pleas in law: (i) breach of Article 25(1) of Regulation N o 1035/72; (ii) misuse of powers; (iii) inadequate statement of the reasons on which the contested measures are based; (iv) breach of the principle of proportionality; (v) breach of the principle of equal treat- ment; and (vi) breach of the principle of the protection of legitimate expectations.

35 It should be noted that the acts which the applicant considers to be the cause of the alleged damage are legislative measures and, according to settled case-law, the Community does not incur liability on account of a legislative measure which involves choices of economic policy unless a sufficiently serious breach of a supe- rior rule of law for the protection of the individual has occurred (judgments of the Court of Justice in Joined Cases 56 to 60/74 Kampffmeyer and Others v Council

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38 The second limb is based on the argument that Regulation N o 846/93 should have taken into account the special position of products which were in transit to the Community at the time when it was adopted.

39 The Court considers that only that second limb — which, moreover, coincides with the applicant's sixth plea — relates to a breach of a superior rule of law for the protection of the individual, namely the principle of the protection of legitimate

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UNIFRUIT HELLAS v COMMISSION

expectations (see the judgments of the Court of Justice in Case 74/74 CNTA v Commission [1975] E C R 533, paragraph 44; Sofńmport, cited above, paragraph 26; and Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Com­ mission [1992] E C R 1-3061, paragraph 15).

40 With regard to the second plea in support of the claim for annulment, alleging a misuse of powers, it follows from the case-law of the Court of Justice that a C o m ­ munity institution, in the present case the Commission, incurs non-contractual lia­ bility if it misuses its powers when adopting a measure contained in a regulation (Case C-119/88 AERPO and Others v Commission [1990] E C R 1-2189, paragraph 19).

The alleged breach of the principle of the protection of legitimate expectations

Arguments of the parties

44 In its first and sixth pleas, the applicant claims that the Commission committed a breach of the principle of the protection of legitimate expectations. In order to demonstrate the existence of that breach, it puts forward, essentially, four argu- ments.

45 First, the applicant considers that the purpose both of the proviso for 'exceptional circumstances' in Article 25(1) of Regulation N o 1035/72 and of Article 3(3) of Regulation N o 2707/72, which should apply by analogy in the present case, is to protect Community importers of the products referred to in those regulations from the detrimental effects of measures which might be taken by the Community insti- tutions. In the applicant's view, therefore, the imposition by the Commission of a countervailing charge on products in transit to the Community is contrary to the principle of the protection of legitimate expectations.

46 Secondly, t h e applicant claims that t h e i n t r o d u c t i o n of special surveillance mea- s u r e s , involving t h e l o d g i n g of a security, as p r o v i d e d for in R e g u l a t i o n N o 3 8 4 / 9 3 , w a s already an initial p r o t e c t i v e measure w h i c h , b y its v e r y n a t u r e , p r e c l u d e d t h e i m p o s i t i o n of a c o u n t e r v a i l i n g charge w i t h regard t o u n d e r t a k i n g s w h i c h h a d s u b -

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in transit would deprive the measure introducing the countervailing charge, as a measure regulating the markets in fruit and vegetables, of any effectiveness in prac- tice. Lastly, the Commission sees no connection between this dispute and the trade agreement between the Community and the Republic of Chile.

Assessment by the Court

51 It has consistently been held that any trader in regard to whom an institution has given rise to justified hopes may rely on the principle of the protection of legiti- mate expectations. However, if a prudent and discriminating trader could have foreseen the adoption of a Community measure likely to affect his interests, he cannot plead that principle if the measure is adopted (judgments of the Court of Justice in Case 78/77 Liihrs v Hauptzolhmt Hamburg-Jonas [1978] ECR 169, para- graph 6; Case 265/85 Van den Bergh en Jurgens v Commission [1987] ECR 1155, paragraph 44).

52 It must therefore be determined whether a prudent and discriminating trader could have foreseen, in early 1993, the introduction of a countervailing charge on Chil- ean apples.

54 With regard to the applicant's argument that its position falls within the 'excep- tional circumstances' referred to in Article 25(1) of Regulation N o 1035/72, the aim of that provision being, inter alia, to exempt goods in transit to the Community from any countervailing charge, it must be remembered that Article 25(1) of Reg- ulation N o 1035/72 provides: 'If the entry price of a product imported from a third country remains at least 0.60 E C U below the reference price for two consecutive market days, a countervailing charge shall be introduced in respect of the export- ing country concerned, save in exceptional circumstances.' The Court considers that the proviso for 'exceptional circumstances' must be interpreted as referring solely to situations in which the Commission decides not to introduce a counter- vailing charge even though all the conditions for the introduction of such a charge are met. It does not, however, allow the Commission, when introducing a coun- tervailing charge, to exempt therefrom certain products, such as goods in transit to the Community.

55 It follows that the proviso for 'exceptional circumstances' in Article 25(1) of Reg- ulation N o 1035/72 was not such as to give the applicant a legitimate expectation that its products — which were necessarily in transit to the Community — could no longer be affected by a countervailing charge.

56 It must next be determined whether, as the applicant claims, Article 3(3) of Regu- lation N o 2707/72, which, in order to protect the legitimate expectations of traders (see Sofrimport, cited above, paragraph 26), requires the Commission when adopt- ing protective measures to take account of the special position of goods in transit to the Community, must apply by analogy to a regulation introducing a counter- vailing charge.

60 The Court considers that the duty to take account of the special position of goods in transit to the Community when adopting protective measures, imposed on the Commission by Article 3(3) of Regulation N o 2707/72, is justified by the fact that protective measures involve essentially, as may clearly be seen from Article 3(1) of Regulation N o 2707/72, the suspension of imports into the Community of a given product. In the Sofrimport case, for example, the Commission regulations in issue suspended the delivery of import licences for Chilean apples. The obligation

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imposed by Article 3(3) of Regulation N o 2707/72 is intended, therefore, to p r o - tect the legitimate expectation which traders may have that their products already in transit to the Community will not be refused entry when they reach C o m m u - nity territory.

6i The Court considers that a countervailing charge, in contrast, does not prevent a trader from importing the products affected by the charge into the Community market. A countervailing charge — unlike the protective measures provided for in Regulation N o 2707/72 to deal with serious market disturbances arising by reason of imports — is not intended to prevent the sale of non-Community products o n the Community market but only to protect price levels on that market by restor- ing entry prices generally to the level of the reference price.

62 Since a countervailing charge is thus not Very similar' to a protective measure, it is not appropriate to apply by analogy Article 3(3) of Regulation N o 2707/72 to a measure introducing such a charge.

64 As regards the applicant's argument that the entry price for the products it imported was between 40% and 63% higher than the reference price, with the result that the imposition of a countervailing charge was not foreseeable, it must be noted that Article 25(3) of Regulation N o 1035/72 provides that the countervailing charge is to be 'the same for all Member States', whatever the entry price for a par- ticular consignment. The countervailing duty thus applies by virtue of the system set up by Regulation N o 1035/72 — the legality of which has not been challenged in this case — to all imports of the product in question of a particular origin and the regulation does not provide for exceptions for imports whose entry price is higher than the reference price. Indeed, under that system, the market price in any one of the Member States may at a given time prove to be higher or lower than the reference price or than the entry price, as denned in Article 24 of the same regu- lation. Such a circumstance has no bearing whatsoever on the validity of the sys- tem set up by Regulation N o 1035/72 which, on the basis of the principle of unity in the field of the common agricultural policy ('CAP'), fixes a Community refer- ence price applicable in a uniform manner throughout the Community and not, as the applicant maintains, on the market of a particular Member State.

65 Consequently) the circumstance that the entry price of the products imported by the applicant was higher than the reference price, even if it were established in these proceedings, could not have given the applicant a legitimate expectation that no countervailing charge would be imposed upon those products.

67 It follows from all the foregoing that the introduction of a countervailing charge on apples originating in Chile was a contingency which should have been taken into consideration by a prudent and discriminating trader, particularly in an area such as the common organization of the markets whose purpose involves constant adjustments to meet changes in the economic situation (see Case 84/78 Tomadini v Amministrazione delle Finanze dello Stato [1979] ECR 1801, paragraph 22; Joined Cases 424 and 425/85 Frico v Voedsehoorzienings In-en Verkoopbureau [1987] ECR 2755, paragraph 33; and Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraph 33). That conclusion is all the more compelling if account is taken of the fact that countervailing charges have regularly been imposed in the past on imports of apples originating in Chile (see, inter alia, Commission Regulations (EEC) N o 1039/89 of 20 April 1989, OJ 1989 L 110, p. 45; N o 1263/89 of 8 May 1989, OJ 1989 L 126, p. 18; N o 1574/89 of 6 June 1989, O J 1989 L 154, p. 15; and N o 2580/92 of 3 September 1992, OJ 1992 L 258, p . 12, all introducing a countervailing charge on apples originating in Chile). Consequently, if the applicant entered into contracts for the purchase of apples originating in Chile before the contested regulations were adopted, it has only itself to blame for having failed to anticipate that a countervailing charge might be introduced (see Frico, paragraph 34).

68 Analysis of the applicant's first and sixth pleas in support of its claim for annul- ment has thus not revealed any breach of a superior rule of law for the protection of the individual of such a kind as to render the Community liable.

nity, which is one of the objectives of the C A P set out in Article 39 of the Treaty. That object was pursued to the detriment of another of those objectives, that of ensuring that supplies reach consumers at reasonable prices. The applicant main- tains that if the Commission had imposed a protective measure it could have lim- ited that measure, in accordance with Article 3(3) of Regulation N o 2707/72, to those markets where the entry price was lower than the reference price. In the applicant's submission, there have been no problems on the Greek market as a result of imports of Chilean apples. Products in transit to Greece could therefore have been exempted from such a protective measure. There was, moreover, no dan- ger that the sale of Chilean apples in Greece might cause disturbance on other mar- kets, in view of the country's geographical isolation and the fact that the concom- itant transport costs negated any incentive to intra-Community trade in those apples.

70 The Commission considers that the rule that the objectives set out in Article 39 of the Treaty must be taken into consideration in a balanced manner when measures under the C A P are adopted does not preclude temporary priority being given to one or more of those objectives. In its view, the imposition of a countervailing charge on Chilean apples, seen in the overall context of the rules concerned, seeks to correct at minimum cost a short-term anomaly on the market for those prod- ucts. The imposition of quotas, as suggested by the applicant, is a much more restrictive measure than the imposition of a countervailing charge. Once it has been exhausted, a quota gives rise to a prohibition of imports, whereas a countervailing charge merely renders imports more expensive, without preventing them from con- tinuing as long as the market can absorb the cost involved.

73 With regard to the argument that the Commission should have adopted a protec- tive measure rather than a countervailing charge, it must be reiterated that, when the Community market experiences serious disturbances by reason of imports, the protective measure provided for in Article 3(1) of Regulation N o 2707/72 is the suspension of those imports. Although a countervailing charge makes imports more expensive, it does not produce such a serious effect. The Court therefore considers that a countervailing charge is less restrictive than a protective measure (see, inter alia, paragraph 26 of the National Dried Fruit Trade Association judgment, cited above) and that the applicant thus cannot justifiably complain, in any event, that no protective measures were introduced.

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74 Furthermore, even on the assumption that a protective measure would in the present case have been less restrictive for the applicant, that argument is in any event irrelevant. Although in exercising its powers the Commission must ensure that the amounts which traders are charged are no greater than is required to achieve the aim which it is to accomplish, it does not however follow that that obligation must be measured in relation to the individual situation of any one trader or group of traders (see, in particular, Case 5/73 Balkan Import-Export v Hauptzollamt Berlin Packhof [1973] E C R 1091, paragraph 22).

75 Analysis of the applicant's fourth plea in support of its claim for annulment has thus not revealed any breach by the Commission of the principle of proportion- ality in the adoption of the contested regulations.

79 The Court considers, however, that the applicant has adduced no evidence of a breach of that fundamental principle of Community law. O n the one hand, it is not contested that the countervailing charge is applicable to all imports of Chilean apples. O n the other, the applicant has not demonstrated that the entry prices of apples from other non-member countries were identical to those of Chilean apples, thus requiring the imposition of the same countervailing charge.

so Analysis of the fifth plea in support of the claim for annulment has thus not revealed any breach by the Commission of the principle of equal treatment.

The alleged misuse of powers

si In the applicant's submission, the imposition of a countervailing charge by Regu- lation N o 846/93 constituted a disguised structural-policy instrument aimed at solving problems in the production of medium-quality apples.

82 The Commission considers that the countervailing charge, as it was calculated and introduced, does not constitute a misuse of powers and states that the structural problems are solved by the withdrawal mechanism.

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87 The application must therefore be dismissed in its entirety.

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Costs

88 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs.

O n those grounds,

H. Jung J. Biancarelli

Registrar President

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