T-541/93

McCUTCHEON AND OTHERS v COUNCIL

O R D E R O F T H E PRESIDENT O F T H E C O U R T O F FIRST I N S T A N C E 16 December 1994 *

In Case T-541/93,

Norman McCutcheon, residing in Aldhogal (United Kingdom), and the other milk producers whose names appear in the annex hereto, represented by James O'Reilly SC, of the Bar of Ireland, and by Philippa Watson, Barrister, instructed by Oliver Ryan-Purcell, Solicitor, with an address for service in Luxembourg at the Fyfe Business Centre, 29 Rue Jean-Pierre Brasseur,

applicants,

v

Commission of the European Communities, represented by Gerard Rozet, Legal Adviser, and by Xavier Lewis, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, of the Legal Service, Wagner Centre, Kirchberg,

and

United Kingdom of Great Britain and Northern Ireland, represented initially by J. D . Colahan, then by S. T. Braviner, of the Treasury Solicitor's Department, act- ing as Agents, with an address for service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,

interveners,

A P P L I C A T I O N under Article 173 of the E E C Treaty for the annulment of Coun- cil Regulation (EEC) N o 2187/93 of 22 July 1993 providing for an offer of com- pensation to certain producers of milk and milk products temporarily prevented from carrying on their trade (OJ 1993 L 196, p. 6), and in particular Articles 8 and 14 thereof,

T H E P R E S I D E N T O F THE C O U R T O F FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

3 By order of 1 February 1994 the President of the Court of First Instance dismissed that application for interim measures and reserved the decision as to costs (Cases T-278/93 R and T-555/93 R and T-280/93 and T-541/93 Jones v Council and Com- mission [1994] ECR 11-11).

4 By a letter received at the Registry of the Court of First Instance on 5 January 1994 the Commission requested leave to intervene in the case in support of the form of order sought by the defendant. By order of 30 August 1994, the President of the Second Chamber of the Court of First Instance granted that request.

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ORDER OF 16.12. 1994 — CASE T-541/93

5 By letter received at the Registry of the Court of First Instance on 2 March 1994, the United Kingdom requested leave to intervene in the case in support of the form of order sought by the defendant. By order of 30 August 1994 the President of the Second Chamber of the Court of First Instance granted that request.

6 By letters received at the Registry of the Court of First Instance between 25 Feb- ruary and 7 October 1994, the applicants, with the exception of Messrs Gregory Walsh, Patrick Hefferman, Thomas Fitzsimons, Patrick Wall, Patrick Griffin, John Harris, Sean Coughlan and James Connaughton, withdrew from the proceedings.

Secondly, the applicants rely on the fact that since by Regulation (EEC) N o 2648/93 of 28 September 1993 laying down detailed rules for the application of Council Regulation (EEC) N o 2187/93 (OJ 1993 L 243, p. 1) the Commission agreed to pay on a flat rate basis the fees of lawyers acting for all milk producers before the communication of 5 August 1992 (OJ 1992 C 198, p. 4), it should also by analogy pay lawyers' fees incurred subsequently to 5 August 1992 on the ground that intervention by the lawyers concerned proved to be necessary in order to improve the position of producers.

Thirdly, the applicants point out that it follows from the order in Jones v Council and Commission, cited above, and in particular paragraph 52 thereof, that were the provisions of Regulation N o 2187/93 at issue in the main proceedings to be adjudged unlawful acceptance of the offer of compensation contained in that Regulation would entail no adverse consequences for them. That paragraph follows on from a statement to that effect made by the Agents of the defendant institutions at the hearing and recorded at paragraph 51 of the order. The applicants explain that, in the light of the increased legal certainty resulting for them from the order, they are now in a position to withdraw from the proceedings.

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ORDER OF 16. 12. 1994 — CASE T-541/93

io As to the applicants' first argument, the Council asserts that the filing of several individual applications for the annulment of Regulation N o 2187/93 was absolutely unnecessary, inasmuch as were the Court of Instance to annul that Regulation such annulment would have effect erga omnes. For its part, the Commission asserts that the filing of actions for annulment was not necessary for the applicants to recover compensation. The withdrawal by the applicants is a purely voluntary act which they chose to take in order to receive the offer of compensation provided for in Regulation N o 2187/93 and does not result from a change of attitude by the insti- tutions.

i2 It must be borne in mind first of all that under Article 8 of Regulation N o 2187/93 the flat-rate compensation provided for is offered only for the period for which the right to compensation is not time-barred and that the five-year time-bar set by Article 43 of the E E C Statute of the Court of Justice for proceedings against the Community in matters arising from its non-contractual liability is considered to have been interrupted either on the date of an application addressed to a Com- munity institution by the producer who considers he has suffered damage, or the date on which the application is entered in the Register of the Court of Justice, or the date of the communication of 5 August 1992 in which the Council and the Commission undertook to apply the judgments of the Court of 19 May 1992 in Joined Cases C-104/89 (Mulder v Council and Commission) and C-37/90 (Heine- mann v Council and Commission [1992] ECR 1-3061), to all affected milk produc- ers. Under Article 14 of Regulation N o 2187/93 acceptance of the offer means that the producers must relinquish any claim against the Community institutions for the damage for which they seek compensation.

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McCUTCHEON AND OTHERS v COUNCIL

i3 During the interlocutory proceedings in this case and in analogous cases, the Coun- cil, like the Commission, the defendant in certain of these cases, stated during the written procedure that acceptance by the applicants of the offer of flat-rate com- pensation and relinquishment of any claim against the institutions does not neces- sarily entail the loss of all their rights to compensation for the whole period for which they consider themselves to be entitled, in the event that the Court of First Instance or the Court of Justice were to find that the time-bar provisions in Article 8 of Regulation N o 2187/93 were illegal. As far as the Council is concerned, in such circumstances compensation would then be payable, in principle, for the whole period.

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The names of Norman McCutcheon and of the other milk producers appear- ing in the annex hereto shall be removed from the list of applicants in Case T-541/93, with the exception of those of Gregory Walsh, Patrick Hefferman, Thomas Fitzsimons, Patrick Wall, Patrick Griffin, John Harris, Sean Coughlan and James Connaughton.

2. The parties shall bear their own costs including those relating to the inter- locutory proceedings.

3. The interveners shall bear their own costs.