C-71/95

BELGIUM v COMMISSION

OPINION OF ADVOCATE GENERAL ELMER delivered on 15 October 1996

Introduction Austria, Finland and Sweden for the sec- ond quarter of 1995; 2 (Case C-155/95)

1. In these cases the Kingdom of Belgium — Commission Regulation (EC) N o has lodged an application for the annulment 1219/95 of 30 May 1995 adopting transi- of the following regulations concerning tional measures for the application of the imports of bananas into the new Member tariff quota arrangements for imports of States, Austria, Finland and Sweden (herein- bananas for the third quarter of 1995 as a after 'the Regulations at issue': result of the Accession of Austria, Fin- land and Sweden 3 (Case C-271/95).

— Commission Regulation (EC) N o 3303/94 of 21 December 1994 introduc- ing transitional measures for imports of bananas into Austria, Finland and Swe- den in the first quarter of 1995; 1 (Case C-71/95)

O n the accession of the new Member States to the European Union they were included in the common agricultural policy, in par- ticular the common organization of the mar- ket in bananas. The Regulations at issue — Commission Regulation (EC) N o 479/95 enable the authorities in the new Member of 1 March 1995 introducing transitional States to authorize operators in their terri- measures for the application of the tariff tory to import bananas from third countries quota arrangements for the import of in specified quantities for each of the first bananas as a result of the accession of three quarters of 1995.

1. The tariff quota shall be opened from 1 July 1993 for: 4 — OJ 1993 L 47, p. 1, as most recently amended by Council Regulation (EC) N o 3290/94 of 22 December 1994 on the adjustments and transitional arrangements required in the agriculture sector in order to implement the agreements con- cluded during the Uruguay Round of multilateral trade negotiations (OJ 1994 L 349, p. 105). 5 — 'Non-traditional imports from ACP States' are defined in the second paragraph of Article 15a under (b) as the quanti- ties of bananas exported by the ACP States which exceed the quantity defined in the regulation. The term 'ACP States' (a) 66.5% to the category of operators who covers a number of countries in Africa, the Caribbean and marketed third country and/or non- the Pacific with which the Community has signed the Lomé Conventions. traditional ACP bananas;

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BELGIUM v COMMISSION

(b) 30% to the category of operators who regulation') contains inter alia provisions on marketed Community and/or traditional the detailed procedure for calculating and ACP bananas; allocating the various quantities referred to in the basic regulation.

(c) 3.5% to the category of operators estab- lished in the Community who started marketing bananas other than Commu- nity and/or traditional ACP bananas The Act of Accession from 1992.

5. The Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded 7 (hereinafter 'the Act of Accession') contains the following provisions: 2. O n the basis of separate calculations for each of the categories of operators referred to in paragraph 1(a) and (b), each operator shall obtain import licences on the basis of the average quantities of bananas that he has sold in the three most recent years for which figures are available ...' 'TITLE VI

Article 148

Article 150 1. Unless otherwise stipulated in specific cases, the Council, acting by a qualified majority on a proposal from the Commis- sion, shall adopt the necessary provisions to 1. The transitional measures relating to implement this Title. implementation of the instruments concern- ing the common agricultural policy not specified in this Act, including in the field of structures, which are required as a result of accession shall be adopted prior to accession in accordance with the procedure laid down 2. The Council, acting unanimously on a in paragraph 3 and shall enter into force on proposal from the Commission and after the date of accession at the earliest. consulting the European Parliament, may make the adaptations to the provisions appearing in this Title which may prove nec- essary as a result of a modification in Com- munity rules.

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3. The Council, acting by a qualified major- for determining the rights of the operators ity on a proposal from the Commission, under the tariff quota arrangements; ... this shall adopt the transitional measures referred allocation must not, however, predetermine to in paragraphs 1 and 2. Nevertheless, the the allocation of the reference quantity to be measures affecting instruments initially employed subsequently for 1995 pursuant to adopted by the Commission will be adopted ... [the implementing regulation]. by this institution following the procedure referred to in Article 149(1).'

The Regulations at issue Article 4

…'

This authorization shall not predetermine the reference quantity to be allocated to the operator in question for 1995 pursuant to ... [the implementing regulation].

8. The second Regulation at issue contains a recital in its preamble corresponding to the above-cited recital in the preamble to the first Regulation at issue. Article 1 of the …' former regulation is worded as follows:

9. The third recital of the preamble to and Article 1 of the third Regulation at issue are worded as follows: 'Article 1

year; ... operators established in the new Member States should accordingly be autho- rized to import a certain quantity of bananas originating in third countries during that third quarter; ... that quantity should be determined on the basis of the average quan- tity which the operators concerned have Each operator's authorization to import may imported to supply those markets during the not cover a quantity greater than 25% of the reference period used to determine the average annual quantity he imported in 1991, operators' rights under the tariff quota 1992 and 1993. arrangements; ... the quantities determined must, however, be without prejudice to the reference quantities to be allocated subse- quently in respect of 1995 pursuant to ... [the implementing regulation]. Such authorizations shall be without preju- dice to the reference quantity to be allocated to the operators concerned in respect of 1995 pursuant to ... [the implementing regulation].

Article 1

Admissibility

— they should have been drawn up on the basis of Articles 148 or 150 rather than Article 149 of the Act of Accession;

14. In its applications concerning the first and second of the Regulations at issue, the — the transitional measures discriminate Belgian Government stated that those regu- against operators in the Community of lations were drawn up by the Commission Twelve in relation to operators in the on the basis of Article 149(1) of the Act of new Member States; and Accession which, as regards the procedure for the adoption of the transitional measures provided for refers to Article 149(3), under which transitional measures are to be adopted by the Council or the Commission, according to which of them drew up the — they do not contain an adequate state- instruments affected by the transitional ment of reasons. measure in question. The basic regulation was adopted by the Council. The first two Regulations at issue contain transitional mea- 9 — Moreover, for 1996 the Commission raised the quota to sures which derogate from the basic regu- 2 553 000 tonnes (see Commission Regulation (EC) No 1559/96 increasing the volume of the tariff quota for lation in relation to the three new Member imports of bananas provided for in Article 18 of Council States and hence the Council rather than the Regulation (EEC) No 404/93 for 1996 (OJ 1996 L 193, p. 12). Commission is competent.

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19. O n that issue of admissibility, the Bel- gian Government claimed that the mistake in the applications only concerns the reference to the articles, not the basic argument which, in the Belgian Government's view, remains intact. 16. In its replies in those cases, under the same heading as the Commission had intro- duced in its defence, the Belgian Govern- ment admitted that in its application it had based itself on a previous version of the Act of Accession. It further claimed that the first and second of the Regulations at issue should have been adopted on the basis of 20. The French Government expressed its Article 148 or 150 rather than Article 149, support for the claim that the applications and examined those provisions in further should be dismissed and stated that in its detail for the purpose of developing its argu- applications in the said questions, apart from ment in that connection. the plea of discrimination and inadequate statement of reasons, the Belgian Govern- ment had claimed solely that the Commis- sion was not competent to adopt the first and second of the Regulations at issue, since competence under Article 149 was conferred on the Council. The applications, however, contain no statement that Article 149 is not applicable as a basis for those regulations. That argument was first put in the replies 17. In its rejoinders, the Commission and should therefore be dismissed under answered the Belgian Government's argu- Article 42(2) of the Rules of Procedure. In ments in its replies. that connection the French Government

1. An application ... shall state: 22. I should point out that under the Court's case-law a plea in law can only be considered new if it has not been mentioned directly or indirectly in the application. n That is also clear from Case 108/81 Amylum v Council, cited b y the F r e n c h G o v e r n m e n t , in which the Court stated:

(c) the subject-matter of the proceedings and a summary of the pleas in law on which the application is based; '... the new submission made by the appli- cant cannot be regarded ... as amplifying a submission made previously because it is only in the reply that the legal rule alleged to have been infringed is mentioned and the cause of nullity thus invoked was referred to

11 — Joined Cases 19/60, 21/60, 2/61 and 3/61 Fives Lille Cail 10 — [1982] ECR 3107. and Others v High Authority [1961] ECR 281.

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24. The discussion in the application of the content of 'Article 149' reveals, however, that the Belgian Government is in fact refer- ring to the content of Article 150 and has thus mistaken the provisions; the Commis- sion, which was well acquainted with the provisions, reached the same conclusion. 26. I should, moreover, point out that both the replies and the rejoinders, and the French Government's intervention, contain a thor- ough discussion of the question of the legal basis of the Regulations at issue, which was also dealt with at the hearing. The Commis- sion was not, therefore, prevented from 25. Where the Belgian Government, in its effectively safeguarding its interests, just as, application, discusses the content of 'Article in my view, the Court has a sufficient basis 149', that is to say of Article 150 which it for reaching a decision in the case, so that the mistakenly considers to be the Article 149 to essential considerations underlying the said which the Regulations at issue refer, and in rules in the Rules of Procedure are satisfied.

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OPINION OF MR ELMER — JOINED CASES C-71/95, C-155/95 AND C-271/95

31. The Commission contended that the purpose of Article 149 is to take into account 29. I would therefore propose that the unforeseeable situations in the new Member Court examine the merits of the objection to States, as is clear from the wording 'to facili- the validity of all the Regulations at issue. tate the transition from the existing regime in the new Member States to ...'. In contrast to Article 148, Article 149 concerns transitional measures of limited duration which is also the case of the Regulations at issue (see the last sentence of Article 149(1)). Measures may be taken with a view to facilitating the transition to the regime resulting from 'application of the common organization of Legal basis the markets under the conditions set out in this Title'. The phrase 'under the conditions set out in this Title' thus refers to application of the market organization. That application is regulated in Article 137, which specifies 30. The Belgian Government amplified its that the common market organization for plea in law concerning Article 149 of the Act bananas is to be applicable in the new Mem- of Accession by stating that that provision ber States from 1 January 1995, and no tran-

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sitional arrangements are laid down. Article inter alia in provisionally exempting the new 149 does not contain any restrictions on the Member States from application of the pro- kind of measures which may be applied to visions of a common market organization. facilitate the transition. Even measures which The scope of application of the provision is involve implementation of the market orga- not restricted to the areas of competence nization being postponed for the time being granted to the Commission by the Council are therefore possible. The only requirement in the context of a common market organi- laid down is that the measures should 'facili- zation. If that had been the case, Article 149 tate the transition'. would have been devoid of purpose, since the Commission is already competent to adapt or amend measures which fall within its competence.

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OPINION OF MR ELMER — JOINED CASES C-71/95, C-155/95 AND C-271/95

where they could not fulfil obligations 37. Accordingly there is no reason to pro- already entered into, so that traditional trad- ceed to a more detailed examination of ing patterns could not have been maintained. Articles 148 and 150. In connection with That would have been diametrically opposed Article 148 I would simply point out that I to the objectives of the market organization. agree with the Commission that Title VI in Accordingly there is no ground for consider- the Act of Accession indicates that the com- ing that it was the intention of the Commu- mon organization of the market in bananas is nity legislature that on the accession of the to be fully applicable in the new Member new countries operators should not be able States and that provisions implementing Title to obtain the quantities needed to supply VI cannot therefore involve the postpone- their customers. In my view it was necessary ment of certain aspects of that market orga- to lay down measures to facilitate the transi- nization in the new Member States. In con- tion for operators in the new Member States nection with Article 150, I would point out without creating problems for operators in that that provision too is irrelevant since it the former Community of 12. Article 149 of must be regarded as a type of safety valve the Act of Accession specifically provides a which may be applied until accession in basis for the Commission to lay down such order to lay down transitional measures provisions. which, for one reason or another, have not been dealt with in the Act of Accession, even if room should have been found for them there.

39. The Commission states that the Regula- 41. As stated in point 34 above, allocation of tions at issue were necessary because the an unamended tariff quota of 2.2 million Council had not adapted the tariff quota on tonnes, calculated for 12 Member States for 1 January 1995, even though the Commis- an entire year, between operators in an sion had submitted a proposal to that effect. extended Union of 15 Member States would Moreover, the allocation of the tariff quota have involved a reduction of the importing between operators in the Community of rights of operators in the Community of 12 Twelve had to a large extent begun early in and the allocation of insufficient importing December 1994 and if that process had been rights to operators in the new Member interrupted that would have harmed opera- States. tors in the Community of Twelve to a sig- nificant degree and would have jeopardized supplies in the common market. Import authorizations are without prejudice to the quantities which operators will be allocated for 1995 as a whole. In relation to 1995 as a whole there was therefore no discriminatory treatment of operators in the Community of Twelve as against those in the new Member States. 42. Prior to the accession of the new Mem- ber States on 1 January 1995, the Commis- sion anticipated that as a consequence of the accession the Council would raise the tariff quota to accommodate a Union of 15 Mem- ber States. If only for that reason the Com- mission did not seek to raise the tariff quota which had been laid down for the Commu- nity of Twelve at the time, by way of the committee procedure (see Article 27 of the 40. I would point out that the Belgian Gov- basic regulation). The forecast which, under ernment's argument that the Regulations at Article 16 of the basic regulation, is to pro- issue discriminate against operators in the vide a basis for adaptation of the tariff quota Community of Twelve in relation to opera- by way of the committee procedure, is usu- tors in the new Member States is not easy to ally made at the end of the year when the characterize from the legal point of view. forecast can be based on the figures for the What the Belgian Government in fact means first part of the year, a method which was

43. The Commission resolved the problem by means of the Regulations at issue, which 45. Authorizations to the new Member made it possible to authorize operators in States to import third-country bananas the new Member States to import bananas within specified quantities for each of the from third countries in certain specified first three quarters of 1995 were thus justi- quantities for each of the first three quarters fied by the fact that the situations of opera- of 1995, without being divided into the three tors in the new Member States and in the categories A, B and C as mentioned in former Community of Twelve were differ- Article 19(1) of the basic regulation, since ent. The fact that the Commission treated operators in the new Member States had, unlike situations differently by departing according to the evidence, exclusively from the common market organization on imported bananas in category A. that point does not therefore constitute an infringement of the principle of equal treat- ment, but rather observance of that principle.

44. It should be noted that the Regulations at issue cannot be viewed in isolation but should be seen in relation to the additional quantity regulation. The quantities set out in the Regulations at issue had first to be set against the tariff quota of 2.2 million tonnes, 46. I would further point out that the Com- but the additional quantity regulation laid mission has explained that, on 1 January down an additional quantity for imports into 1995, it did not have the information avail- the new Member States of third-country and able concerning operators in the new Mem- non-traditional ACP bananas (category A) ber States that was necessary for application for the whole of 1995. The import quantities of the rules for allocating the tariff quota. It authorized in the new Member States in the has not been clarified whether, at the time

50. The Commission contends that the requirement in Article 190 of the Treaty has 47. As stated by the Commission, all three been satisfied. The Regulations at issue refer Regulations at issue nevertheless include a to the implementing regulation and their provision that the import authorizations are preambles refer to the new Member States to be without prejudice to the quantities and the adjustments made necessary by allocated to operators for 1995 pursuant to accession in those countries. The purpose of Article 6 of the implementing regulation. the Regulations at issue, to facilitate adjust- That implies, in connection with the addi- ments, is clearly indicated. Lastly, the con- tional quantity regulation, which puts into tent of the transitional measures is set out in effect the rules provided for in Article 19(2) the preambles. of the basic regulation, and Articles 3 to 6 of the implementing regulation for the new Member States, that over 1995 viewed as a whole there was no discriminatory treatment between operators in the Community of Twelve and the new Member States in rela- tion to those rules. 51. I would point out that the statement of reasons required under Article 190 must, according to the Court's settled case-law, show clearly and unequivocally the reason- ing underlying the measure so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review. 1 2It is not necessary, however, for details of all relevant

48. In the light of the foregoing, I do not consider that the plaintiff's plea in law that the principle of equal treatment was 12 — See, for instance, Case C-353/92 Greece v Council [1994] ECR 1-3411, paragraph 19, and Case C-350/88 Delacre infringed can be upheld. [1990] ECR I-395, paragraph 15.

factual and legal aspects to be given, since the 54. Moreover, it appears from the additional statement must be assessed with regard to quantity regulation that the measures for the the context of the measure and weighed first three quarters were justified on admin- against practical realities and the time and istrative and technical grounds. Firstly, it had technical facilities available for adopting the proved impossible to apply the rules in the measure. 13 implementing regulation to the operators in the new Member States within the appropri- ate time; secondly, without an adjustment of the tariff quota it was not possible to fix import rights for operators in the new Mem- ber States without at the same time provi- sionally reducing the import rights fixed for that year for the operators in the other Member States. 52. The purpose of the first two Regulations at issue is given in the second and third recit- als in their preambles respectively, from which it appears that it is to facilitate the transition from the arrangements existing in the new Member States to those resulting from application of the common organiza- tion of the market in bananas. 55. The two reasons for the adoption of the Regulations at issue as set out in the addi- tional quantity regulation are identical to the line of reasoning put forward by the Com- mission in this case. As it appears, the first two Regulations at issue do not contain any statement regarding those reasons, while the third Regulation at issue mentions one of the 53. In the third recital in the preamble of the reasons. In my view, it would have been third Regulation at issue, there is a corre- appropriate for the two reasons set out in the sponding statement of its purpose and in additional quantity regulation t o have been addition a statement that, pending the adjust- explained in each of the Regulations at issue ment of the tariff quota following the acces- as well. sion of the new Member States, reference quantities cannot be determined for the operators in the new Member States in respect of 1995 without at the same time provisionally reducing the reference quanti- ties determined at the end of 1994 for the operators in the other Member States in respect of the same year. 56. As stated, the case-law of the Court does not, however, require the statement of rea- sons to give details of all relevant factual and legal aspects, since the statement must be 13 — See, for instance Delacre, cited in footnote 12, paragraph 16; assessed with regard to the context of the Case 125/77 Koninklijke Scholten-Honig [1978] ECR 1991, paragraphs 18 to 22: Case 92/77 An Bord Bainne [1977] measure. I therefore consider that there is ECR 497, paragraphs 36 and 37; and Case 16/65 Schwarze [1965] ECR 877. not an adequate basis for annulling the

(1) find in favour of t h e C o m m i s s i o n ;

(2) o r d e r the K i n g d o m of Belgium t o p a y t h e costs and t h e F r e n c h R e p u b l i c t o bear its o w n costs.

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