T-268/94

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supported by

Toys Manufacturers of Europe, a company incorporated under Belgian law, established in Brussels, represented by Hugues Calvet, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand- Rue,

and by

Hasbro UK Ltd, a company incorporated under English law, established in Uxbridge, Middlesex (United Kingdom), represented initially by Jacques H. J. Bourgeois and subsequently by Jacques Ghysbrecht, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of De Bandt, Van Hecke, Lagae and Loesch, 11 Rue Goethe,

supported by

Kingdom of Spain, represented initially by Alberto Navarro Gonzalez, Director- General for Community Legal and Institutional Coordination, and Gloria Calvo Díaz, Abogado del Estado, and subsequently by Alberto Navarro González and Rosario Silva de Lapuerta, Abogado del Estado, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,

intervener,

APPLICATION for, first, the annulment of Article 1 of each of Commission Regulation (EC) No 1012/94 of 29 April 1994 and Commission Regulation (EC) No 1225/94 of 30 May 1994 establishing the allocations to traditional and non- traditional importers respectively from the Community quantitative quotas on certain products originating in the People's Republic of China (OJ 1994 L 111, p. 100, and OJ 1994 L 136, p. 40) as well as for a declaration of illegality of Article 1(2) of Council Regulation (EC) No 519/94 of 7 March 1994 on common rules on imports from certain third countries and repealing Regulations (EEC) Nos 1765/82, 1766/82 and 3420/83 (OJ 1994 L 67, p. 89), and of Article 3(2) of Commission Regulation (EC) No 747/94 of 30 March 1994 establishing administration procedures for quantitative quotas on certain products originating in the People's Republic of China (OJ 1994 L 87, p. 83), and, second, compensation to make good the loss suffered by the applicants as a result of the contested provisions, II - 3572

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THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber, Extended Composition),

ORDER OF 13. 12. 1999 — CASE T-268/94

2 The specific provisions relating to the administration of those quotas are defined in Commission Regulation (EC) No 747/94 of 30 March 1994 establishing administration procedures for quantitative quotas on certain products originating in the People's Republic of China (OJ 1994 L 87, p. 83, hereinafter 'Regulation No 747/94'). Each quota is divided between the traditional and non-traditional importers. Article 3(2) of Regulation No 747/94 provides that the reference period for the purposes of demonstrating status as a traditional importer 'shall comprise calendar years 1991 and 1992'; importers are to provide evidence that, during those two years, they imported from China products covered by the Community quotas referred to in Annex II to Regulation No 519/94.

3 Commission Regulations (EC) No 1012/94 of 29 April 1994 and No 1225/94 of 30 May 1994 establish the quantities allocated to traditional and non-traditional importers respectively from the Community quantitative quotas on certain products originating in the People's Republic of China (OJ 1994 L 111, p. 100, hereinafter 'Regulation No 1012/94', and OJ 1994 L 136, p. 40, hereinafter 'Regulation No 1225/94').

Proceedings and arguments of the parties

4 The applicants brought this action by application lodged at the Court Registry on 20 July 1994. They claim that the Court should:

— declare the application admissible;

— uphold the plea of illegality raised against:

— Article 1(2) of Regulation No 519/94;

— Article 3(2) of Regulation No 747/94;

in so far as those measures concern the applicants;

— order the payment of compensation for any damage caused to the applicants through the application of all the abovementioned provisions; II - 3575

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6 The Commission contends that the Court should:

— declare the action for annulment to be inadmissible or, alternatively, dismiss it as unfounded; II - 3576

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— dismiss the action for damages as unfounded;

— order the applicants to pay the costs.

7 By order of 24 February 1995 of the President of the Fourth Chamber, Extended Composition, of the Court, the Kingdom of Spain was granted leave to intervene in support of the form of order sought by Council and the Commission.

1 2 On 19 November 1998 the Court of Justice gave judgment in Case C-150/94 United Kingdom v Council [1998] ECR I-7235 and Case C-284/94 Spain v Council [1998] ECR I-7309, dismissing both actions.

13 By letter from the Registry of 23 December 1998, the Court invited the parties to submit their observations on the conclusions to be drawn from the judgment in United Kingdom v Council.

14 By letter lodged at the Court Registry on 15 January 1999, the Kingdom of Spain asked the Court, first, to declare that the action brought against Regulations No 1012/94 and No 1225/94 was inadmissible and, in the alternative, to dismiss the plea of illegality raised against Regulations No 519/94 and 747/94, and, second, to hold the claim for compensation to be inadmissible or, alternatively, unfounded.

15 By letters lodged at the Court Registry on 17 February 1999, the Commission and the Council requested the Court to declare that, following the judgments in United Kingdom v Council and Spain v Council, it was no longer necessary to II - 3578

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adjudicate on the present action or, in the alternative, to dismiss as unfounded the action for annulment and the claim for compensation, and to order the applicants to pay the costs.

ORDER OF 13. 12. 1999 — CASE T-268/94

The plea of illegality raised against Article 1(2) of Regulation No 519/94

21 The Council and the Commission contend that the Court of Justice, by rejecting, in its judgment in United Kingdom ν Council, all the grounds for annulment put forward by the United Kingdom, confirmed the legality of Regulation No 519/94 as regards the toys imported from China, on the basis of a full and comprehensive analysis of the grounds which were pleaded by the Member State in that case and have been repeated by the applicants in the present case.

22 The Kingdom of Spain points out that the grounds put forward by the applicants in support of their plea of illegality are worded in almost exactly the same terms as those put forward by the United Kingdom in its direct action. In its judgment in United Kingdom ν Council, the Court of Justice rejected those grounds as unfounded and, in so far as they are concerned, that judgment has the authority of res judicata.

23 The Court finds that the pleas in law and arguments put forward by the applicants, alleging infringement of the duty to provide a statement of reasons, failure to assess the facts or a manifest error of assessment, and breach of the principles of proportionality and equal treatment have already been invoked, in essence, in the case leading to the judgment in United Kingdom ν Council.

24 Accordingly, by rejecting all the grounds of annulment put forward by the United Kingdom and repeated by the applicants in this action, the Court of Justice has confirmed, to that extent, the legality of Article 1(2) of Regulation N o 519/94 so far as concerns the toys imported from China.

26 As regards the lack of legal basis, the applicants themselves acknowledge, on page 16 of their reply, that the omission of an express reference to Article 113 of the EC Treaty (now, after amendment, Article 133 EC) in Regulation No 519/94 is only a clerical error in the French version of the regulation. As regards the infringement of the Agreement on Trade and Economic Cooperation between the European Economic Community and the People's Republic of China, it need merely be observed, first, that, as the applicants acknowledge on page 26 of their reply, nothing in the Agreement precluded the Council from adopting the quotas included in Annex II to Regulation No 519/94 and, second, that, contrary to what the applicants contend, it is apparent from the 20th recital of the regulation that, when the Council adopted the quotas, it did carry out the consultations specified in the Agreement. As for infringement of the right of the importers concerned to a hearing and breach of the principle patere legem quam ipse fecisti, it must be pointed out that, as this is a parent regulation and, therefore, a measure of a general nature, the Council was not required to hear the views of the importers concerned before fixing the quotas laid down in Regulation No 519/94. Moreover, at no point in the procedure did the applicants ask for the opportunity to be heard by the Community institutions. Finally, as regards breach of the principles of legal certainty, protection of legitimate expectations and good administration, and as regards, also, misuse of powers and abuse of process, suffice it to state that the applicants have not adduced the slightest evidence of such irregularities.

30 The Commission maintains that the Court of Justice, in its judgment in United Kingdom ν Council, rejected the plea, raised by the United Kingdom, to the effect that the fixing of the 1994 quotas at the import levels for 1991 infringed the principle of proportionality in so far as the quotas were designed to cause a reduction in imports of approximately 50% in relation to 1993. The Commission states, in this regard, that 1993 was not a typical year owing, amongst other things, to the significant rate of increase in imports revealed by the first available statistics. For that reason, the Commission had excluded 1993 from the reference period to be taken into consideration for determining the traditional imports. Since the Court of Justice considered that the 1994 quotas could be fixed at the level of imports achieved in 1991, the Commission cannot be criticised for not taking 1993 into account as a reference period. The plea raised by the applicants is therefore rendered devoid of substance.

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34 It follows from all the foregoing that the claims for the annulment of Article 1 of Regulation No 1012/94 and Article 1 of Regulation No 1225/94, since they are based solely on the plea of illegality raised against Article 1(2) of Regulation

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No 519/94 and Article 3(2) of Regulation No 747/94, must be dismissed as manifestly unfounded in law.

35 The claims for compensation are also manifestly unfounded in law because the contested regulations are not vitiated by any illegality of a nature such as to cause the Community to incur liability.

Costs

THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition)

hereby orders:

1. The application is dismissed as manifestly unfounded in law.

2. The applicants are ordered to bear their own costs and, jointly and severally, to pay the costs incurred by the Commission and the Council.

3. The Kingdom of Spain, Toys Manufacturers of Europe and Hasbro UK Ltd, interveners, shall bear their own costs.

Luxembourg, 13 December 1999.