C-390/95

4. Article 136 provides that an Implementing * Original language: German. Convention annexed to the Treaty is to give 1 — Judgment of 14 September 1995 in Joined Cases T-480/93 and effect to those provisions for an initial period T-483/93 AntilleanRice Mills and Others[1995] ECR II-2305. 2 — OJ 1991 L 263, p. 1. of five years after the entry into force of the

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Treaty. Before the said Convention expires, OCT may be restricted under Article 109 of the Council, pursuant to Article 136, para­ the OCT Decision, but this in turn may con­ graph 2, is to 'lay down provisions for a fur­ flict with the aims of development for the ther period, on the basis of the experience OCT. acquired and of the principles set out in this Treaty'. Since 1964 the Council has adopted six decisions on the basis of that provision, the last being the abovementioned OCT Deci­ sion of 25 July 1991 which, unlike the pre­ vious decisions, applies for ten years and not five. Article 109 of the OCT decision reads as fol­ lows:

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they process there is from Surinam and (2) The minimum price obtained pursuant to Guyana. paragraph 1 shall not be less than an absolute minimum price (a 'floor price') equivalent to ECU 546 per tonne of semi-milled rice. The absolute minimum price shall be increased each month by ECU 3.5 per tonne from 1 March 1993. 8. The action which they brought before the Court of First Instance was occasioned by safeguard measures taken by the Commission on the basis of Article 109 of the OCT Deci­ sion.

(3) ...

9. By a first decision dated 25 February 1993 'introducing safeguard measures in respect of 4 rice originating in the Netherlands Antilles', the Commission had laid down the following provisions:

Article 5 'Article 1

7 2.1 Annul in their entirety Commission Deci­ 12. By judgment of 14 September 1995 the sion 93/127/EEC of 25 February 1993 Court of First Instance annulled Article 1(1) introducing safeguard measures in respect of the first of the Commission's decisions and of rice originating in the Netherlands dismissed the remainder of the applications. Antilles and Commission Decision 93/211/EEC of 13 April 1993 modifying Decision 93/127/EEC introducing safe­ guard measures in respect of rice origi­ nating in the Netherlands Antilles;

13. The Court of First Instance considered that 'by placing ACP rice and American rice in a more favourable competitive position on the Community market than Antillean rice, 2.2 Order the Community to make good the Article 1(1) of the decision of 25 February damage suffered by the applicants as a 1993 goes beyond what was strictly necessary result of those decisions; to remedy the difficulties caused for the mar­ keting of Community rice by imports of 8 Antillean rice.'

2.3 Order the Commission to pay the costs 7 — Cited in footnote 1. of the appeal and of the proceedings 8 — Paragraph 143 of the judgment before the Court of First Instance.

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3. Give judgment itself in accordance with The form of order sought by the Italian Article 54 of the Statute of the Court of Jus­ Republic was worded as follows: tice or, in the alternative, refer the case back to the Court of First Instance for judgment.

C — Admissibility

— to dismiss the appeal or, in the alternative, to dismiss the first ground of appeal, and

15. As it had already done before the Court of First Instance, the Italian Republic, as intervener, raises the objection that the action — to order the applicants to pay the costs. is inadmissible on the ground that the appli-

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cants are not directly and individually con­ 18. To determine this question, the Court of cerned. First Instance drew a parallel with the Piraiki- Patraiki judgment. In that case the Court of Justice concluded, from Article 130(3) of the Act of Accession of the Hellenic Republic, that when the Commission adopts safeguard measures, it must, in so far as the circum­ stances of the case permit, inquire into the negative effects which its decision might have on the economy of the Member State in question and also on the undertakings con­ 1 cerned. 1The undertakings in question were 16. The applicants agree with the finding by therefore deemed to be individually con­ the Court of First Instance that the action cerned. The Court of First Instance has now was admissible and, moreover, contend that, found that, as the terms of Article 109(2) of as an intervener, the Italian Republic is wholly the OCT Decision were substantially the same precluded from raising the objection of inad­ as those of the abovementioned provision, missibility as it has not been raised by the 12 the Commission had the same obligation. party which it supports. This reasoning stands up to legal examination because, as the Court of First Instance observed, the two provisions are similar not only in their wording but also in their pur­ pose, namely, to define the level at which the 13 Community may adopt safeguard measures.

the present case the decisions were likewise 22. In this connection it must be observed addressed to all the Member States. that the Buralux case involved a regulation the sole purpose of which, according to the Court of Justice, was to establish the frame­ work within which the Member States could introduce restrictions. The Court of Justice concluded from this that the legal effects which that regulation might produce con­ cerned categories of persons envisaged gener­ 1 ally and in the abstract. 7Thepresent case, in contrast, concerns a clearly circumscribed 20. However, the Court of First Instance measure — the fixing of a minimum price, correctly observed that the number of Member and solely for rice from the Netherlands Anti­ States in which the safeguard measure applies lles — which is why the categories of persons 1 is not what matters. 5 concerned are not envisaged merely generally and in the abstract. Moreover, although these decisions are addressed to all the Member States, they relate only to rice from the Neth­ erlands Antilles.

sion was adopted. As a finding of fact, this D — Substance cannot be reviewed by the Court of Justice.

27. The applicants have appealed against the judgment on six grounds in all. These relate 25. The Court of First Instance added that to breach and/or misapplication of Part Four the Commission, which had an implied obli­ of the Treaty concerning the association of gation under Article 109 of the OCT Deci­ overseas countries and territories, and/or of sion to ascertain the negative effects of its the OCT Decision by the Court of First decision, was aware of the situation of these Instance. In the applicants' opinion, the two undertakings when the decision was Council should not have included a general 20 adopted. Therefore the Court of First safeguard clause in its decision. Moreover, in Instance correctly concluded that the two the second decision the Commission went undertakings were individually concerned further than was necessary. Finally, the appli­ because they were in a position which differ­ cants claim that the Court of First Instance entiated them from other persons concerned. was wrong in finding that there was no There is no need to consider whether the liability on the part of the Community. other applicants were individually affected 21 because joint applications are concerned.

First ground of appeal

26. Consequendy the Court of First Instance was right in finding that the action was admis­ sible. It is therefore unnecessary to decide whether an intervener can raise an objection Arguments of the parties of inadmissibility where the party whom it supports is alleged not to have done so. According to the case-law of the Court of Justice, Italy could in any case have raised the 2 issue of inadmissibility. 2

29. In the applicants' opinion, the Court of goods between the Community and the OCT First Instance was wrong in stating that Article in the interest of the common agricultural 109 of the OCT Decision completed a system policy. This would amount to an infringe­ which for the first time gave free access to the ment of Articles 132(1) and 133(1) of the Community for agricultural products. What Treaty. The Council can derogate from them Article 109 in fact does is to extend the gen­ only if it is expressly empowered to do so in eral safeguard clauses which had the same the second paragraph of Article 136. This was object and the same scope and were contained not the case here. Consequently, rules which in previous Council decisions. Therefore the are contrary to the said provisions of Part Court's conclusion was based on an impre­ Four of the Treaty could be introduced only cise view of the antecedents of Article 109. by way of an amendment of the Treaty.

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sufficient alternative ways of regulating the 38. In addition, the Commission and the relationship between the OCT and the Com­ Council refer to the Council's wide discre­ munity. On this point the applicants refer to tion under the second paragraph of Article the common market organisations and Articles 136. According to them, it follows that the 36 and 115 of the Treaty. Court of Justice can only consider whether the Council's measures were manifestly inap­ propriate for attaining the objective pursued. They both take the view that the Council did not exceed its discretion in this respect. On the contrary, according to the Council, the second paragraph of Article 136 itself consti­ tutes the legal basis for a limitation on the 35. The Commission considers that the appli­ free movement of goods. cants have misconstrued the judgment. So far as the relationship between the OCT and the Community is concerned, the Commission does not deny that here there is a special rela­ tionship which cannot be compared with those between the Community and other associated countries. However, there is no internal market 39. As regards Articles 132 and 133 of the between the two. Furthermore, the purpose Treaty, the Council adds that the question of of association is not to give preferential treat­ the direct effect of these provisions was not ment to the OCT, as the applicants claim, but raised at first instance and therefore it cannot only to promote their development. Conse­ be examined here. quently they do not have the status of Member States.

the Council to decide in the exercise of its represented an important step forward in discretion under Article 136. enacting for the first time as a principle that there should be free access to the Community for agricultural products originating in the OTC , even if it also made that access subject, necessarily also for the first time, to a general safeguard clause ...'. 42. On the 'Protocol on the Importation into the European Economic Community of Petro­ leum Products Refined in the Netherlands Antilles' the Council observes that this Pro­ tocol dates from 1962. The first OCT deci­ sion was not adopted until 1964. At that date the ratification of the Protocol was so far advanced that the legal construction required 44. From all this, it is quite clear that, in the in 1962 was retained more or less automati­ opinion of the Court of First Instance, the cally. general safeguard clause which already existed was applied for the first time to agricultural products, after they were placed on the same footing as other products. It is certainly not apparent, as the applicants claim, that Article 109 of the OCT Decision introduced a safe­ Appraisal guard clause for the first time, and in connec­ tion with the extension of the rules to agri­ cultural products.

46. Here reference must be made to the Road 24 Air judgment, in which the Court of Justice held that 'association of the OCT with the Community is to be achieved by a dynamic 48. For this reason it is also impossible to and progressive process which may necessi­ concur with the applicants when they infer tate the adoption of a number of measures in from the Road Air judgment that the second order to attain all the objectives mentioned in paragraph of Article 136 envisages only the Article 132 of the Treaty, having regard to the principles of Part Four of the Treaty. In that experience acquired through the Council's judgment the Court of Justice observed that, 25 previous decisions'. It follows that the free in the light of the objectives of Article 132, movement of goods does not come into being, 'the second paragraph of Article 136 must be as between the Community and the OCT , interpreted as providing not for a single "fur­ solely by virtue of Article 132. That article ther period" for which the Council is empow­ mentions it only as an objective to be attained, ered to adopt provisions needed in order to 27 if necessary by the adoption of several provi­ attain the objectives of association ...'. The sions. applicants conclude from this that the second paragraph of Article 136 refers only the objec- tives of Part Four of the Treaty.

50. In support of their submission, the appli­ 52. This cannot mean that the OCT are to be cants mention the third recital in the pre­ given an additional advantage, because it is amble to the OCT Decision which, according clear from the second paragraph of Article to them, refers only to the principles of Part 131 of the Treaty that the purpose of associa­ Four of the Treaty, with the consequence that tion is to promote the economic and social the second paragraph of Article 136 (which development of the OCT , and not to give forms the legal basis for that decision) refers them preferential treatment. to the principles of Part Four only. This argu­ ment cannot be accepted. The third recital in the preamble states that 'having regard to the special relationship between the OCT , which is based on the provisions of the Treaty, in particular, Part Four, it is necessary to improve its provisions by ...'. However, this refers only 53. It follows that the movement of goods generally to the provisions of the Treaty gov­ between the OCT and the Community is not erning association. It cannot be concluded (yet) unrestricted, which is why the general from this that it is unnecessary, in the context principles of the Treaty, including agricultural of association and the Council decisions policy, must be taken into account in the relating to it, to take account of other prin­ gradual attainment of objectives when the ciples of the Treaty, that is to say, including Council adopts OCT decisions on the basis the agricultural policy. of the second paragraph of Article 136. This may very well lead to restrictions on the movement of goods.

56. As regards the applicants' reference to the 58. The applicants' second ground of appeal protocols, the fact that, in those particular relates to the finding of the Court of First cases, protocols were signed is not a ground Instance that the Commission was entitled to for concluding that a safeguard clause is not find that difficulties had arisen which might possible in the context of the second para­ result in a deterioration in the Indica rice- graph of Article 136. As we have seen, such a growing sector in the Community. safeguard clause does not require an amend­ ment to the Treaty because a clause of that kind does not infringe the principles of Part Four merely by reason of its existence (the free movement of goods has not yet been achieved, but is only one of the objectives of association). 59. They contend that the Court ought to have established whether there was a causal connection between the fall in the price of Community paddy rice and the increase in imports of Antillean semi-milled rice. According to the applicants, this is required by Article 109(1) of the OCT Decision.

57. In this connection it must also be observed that, in the OCT Decision, the Council autho­ rises safeguard measures only to a limited extent. Article 109(2) provides as follows: 60. They claim that the fact that the Com­ mission tried, in its first decision, to prove a causal connection also shows that such a con­ nection must exist.

'For the purpose of implementing paragraph 1, priority shall be given to such measures as would least disturb the functioning of the 61. However, the imports from the Nether­ association and the Community. These mea­ lands Antilles had no negative effects on the sures shall not exceed the limit of what is Community market since they merely took strictly necessary to remedy the difficulties the place of imports of rice from Surinam and that have arisen.' Guyana. To that extent, according to the

63. On the other hand, the Commission con­ siders that it is clear from the wording of 28 Article 109(1) of the OCT Decision that a 66. I must agree with the Commission's sub­ causal connection is required only for the first mission that it is clear from the wording of situation mentioned in that provision. (This Article 109 of the OCT Decision that a causal arises where, as a result of the application of connection is not required in relation to the the Decision, serious disturbances occur in a second eventuality. Paragraph 1 mentions two sector of the economy of the Community or different situations, each of which begins with of one or more of its Member States or their the word 'if', but only the first includes the external financial stability is jeopardised). For phrase 'if, as a result of the application of this the second eventuality — if difficulties arise Decision ...'. It follows that the difficulties which may result in a deterioration in a sector referred to in the second case do not have to of the Community's activity or in a region of be caused by the application of the Decision. the Community — no such causal connection is required. It would also be difficult to prove a connection because the market may be influ­ enced by many factors.

67. On the other hand, I agree with the applicants' submission that, if there were no connection at all between the imports and the 64. However, the Commission does not deny price of Community products, safeguard mea­ that there must be some connection between sures would be entirely pointless. It must the economic difficulties and the imports in surely be possible to eliminate or mitigate the question. However, the Court of First Instance difficulties by means of safeguard measures. established that necessary connection. Otherwise, such measures would be dispro­ portionate and would be contrary to the second sentence of Article 109(2) of the OCT 28 — See paragraph 6 above. Decision.

68. Therefore the connection must be such 70. Thus the Court of Justice has also held, that a reduction in imports may in some way in the context of Article 155 of the Treaty, produce an effect on prices in the Commu­ that the Council may be led in the sphere of nity. However, this does not mean that the the common agricultural policy to confer on difficulties must be caused by the application the Commission wide discretionary powers of the Decision, that is to say, by the imports. and powers to take action because it (the Commission) alone is able continuously and attentively to follow trends on agricultural markets and to act with urgency as the situ­ ation requires. The Court concluded from this — and from the context of the Treaty in which it must be placed — that the term 'implemen­ tation' in Article 155, referring to the imple­ mentation by the Commission of the rules laid down by the Council, must be given a 33 wide interpretation. For this reason also the Commission may be considered to have a broad discretion in the present case because here the fixing of a minimum price likewise requires the assessment of agricultural mar­ 69. Secondly, the Court of First Instance cor­ kets. It follows that the Court of First Instance rectly observes that within the field of appli­ has to confine itself to considering whether in cation of Article 109 of the OCT Decision exercising that discretion the Commission the Commission enjoys a broad discretion committed a manifest error or misused its not merely as regards the existence of the powers or whether it clearly exceeded its conditions justifying the adoption of a safe­ 34 powers. guard measure, but also as to whether a safe­ 29 guard measure should be adopted or not. The Court of First Instance infers this from the wording of Article 109(1) to the effect that the Commission 'may' take or may autho­ rise the Member State concerned to take safe­ guard measures if certain conditions are ful­ 30 filled. The Court then adds that 'if one of the conditions is met, however, the Commis­ 71. It is hard to see in what respect the Court sion is not required to adopt a safeguard mea­ of First Instance went wrong in its examina­ 31 tion of this matter. First, it examined the sure but merely to decide in that regard'. Consequently the Council has conferred upon Commission's claim that there had been an the Commission the discretion which it enjoys appreciable fall in the price of Community under Article 109 of the OCT Decision. 32 paddy rice which, like Antillean semi-milled rice, can be used as a raw material by Com­ munity producers of milled rice. Finally, the Court of First Instance observed that the 29 — See the Antillean Rice Mills judgment, cited in footnote 1, paragraph 122. 30 — Ibid., paragraph 120. 31 — Ibid., paragraph 121. 33 — See the judgment in Case 23/75 Rey Soda [1975] ECR 1279, 32 — Sec the order of the President of the Court of First Instance paragraphs 10-14. in Case T-179/97 R Government of the Netherlands Antilles 34 — See the Antillean Rice Mills judgment, cited in footnote 1, y Council [1997] ECR II-1297, paragraph 35. paragraph 122.

applicants had not disputed the actual fact 73. Consequently the Court reached the con­ that prices had fallen. As a factual finding, clusion that 'the Commission therefore rightly this cannot be reviewed by the Court of Jus­ found that there was a considerable difference tice. The Court of First Instance went on to between the price for Community rice and examine the question whether the price of that for Antillean rice, which might have Community Indica paddy rice could also be caused the collapse in the price of Commu­ 36 said to have fallen. In view of the simulta­ nity rice between September 1992 and January 41 neous considerable rise in imports from the 1993'. In this way a connection, to that Antilles, which was said by the Court of First extent, between the imports and the fall in the Instance not to be disputed by the appli­ price of Community rice was also established. 37 cants, the Court stated that the Commis­ sion was entitled to find that difficulties had arisen which might result in a deterioration in the Indica rice-growing sector in the Com­ munity and that safeguard measures could 38 therefore be implemented. 74. It follows that the Court of First Instance did consider whether the Commission com­ mitted a manifest error of assessment when examining the relationship between the imports and the fall in the price of Commu­ nity rice. As I have shown, a causal connec­ tion is not necessary. As there was no mani­ fest error of assessment, the second ground of appeal must also fail. 72. The Court of First Instance went on to consider whether the Commission had com­ mitted a manifest error of assessment in its comparison of prices. This involved the ques­ tion of the stage of processing at which prices Third ground of appeal should be compared. According to the Court, the applicants had not succeeded in refuting the Commission's calculations as they had merely alleged that the processing costs and additional costs were too high, but had failed 39 to substantiate these allegations. The Court also noted that the applicants had not chal­ Arguments of the parties lenged the Commission's finding that Anti- llean rice was offered at an appreciably lower price than that at which Community rice could be offered at the relevant stage of pro­ 40 cessing, namely semi-milled. 75. The applicants claim that the Court of First Instance misconstrued Article 109(2) of the OCT Decision by finding that the min­ 35 — Ibid., paragraph 124. imum price fixed by the Commission in the 36 — Ibid., paragraph 126. 37 — Ibid., paragraph 127. 38 — Ibid., paragraph 128. 39 — Ibid., paragraph 130. 40 — Ibid., paragraph 129. 41 — Ibid., paragraph 131.

77. The Commission further submits that the 80. What is open to review is the fundamental difference in price between rice imported from question whether a safeguard measure is dis­ the Antilles and Community rice ought to proportionate if, as here, rice from the Neth­ have encouraged Community producers to erlands Antilles does not receive the same trust that the price of Indica rice would rise, treatment as Community rice, but is placed at so that they would not return to growing a a disadvantage by comparison with it. On surplus of Japonica rice. this point, it must be remembered that the Commission's second decision was a safe­ guard measure which was in principle lawful. However, it is of the essence of such a mea­ sure that certain products are treated unfavour­ ably by comparison with Community prod- ucts. In any case, it cannot be accepted in 78. The Commission observes that the state­ principle that such a safeguard measure may ment by the Court of First Instance that the not impose unfavourable rules on Antillean Commission did not go beyond what was rice.

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82. The applicants challenge the judgment of 84. The Commission argues that the question the Court of First Instance in so far as it was whether or not a legal act is legislative depends held in that judgment that a claim for dam­ on its nature, not its form. However, that is ages on the basis of Article 215 of the EC not affected by whether a party is individu­ Treaty must fulfil special conditions because ally concerned or not. A claim for damages the first Commission decision is of the nature under Article 215 of the EC Treaty is an of a legislative measure. The Court stated that, in such a case, the Community can incur

43 — Sec the judgments in Joined Cases 197/80, 200/80, 243/80, 245/80 and 247/80 LudwigshafenerWalzmühle[1981] ECR 3211, paragraph 18, and Case 4/69 Lütticke [1971] ECR 325, 42 — Ibid., paragraphs 149 to 151. paragraph 10.

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87. As the Court of First Instance, in the Appraisal Antillean Rice Mills judgment, took account of the fact that the Commission has a broad 48 discretion here, it is impossible to see how it can be said to have misconstrued Article 215 of the EC Treaty when referring, in its examination of the matter, to more stringent requirements. 86. In its judgment in Bayerische HNL and Others v Council and Commission 46 the Court of Justice, referring to the principles existing in the various Member-States, found that the public authorities can only exceptionally and in special circumstances incur liability for leg­ islative measures which are the result of choices of economic policy. 'This restrictive view is 88. The applicants' alternative grounds of appeal cannot succeed here either. As the Commission correctly observed, the fact that individuals are concerned does not alter the 44 — See the judgments in Case 59/84 Tezi [1986] ECR 887, para- graph 70; Case 253/84 GAEC de la Ségaude [1987] ECR nature of the decision as a legislative measure. 123, paragraph 9; and Case C-55/90 Cato [1992] ECR I-2533, paragraph 18. 45 — See the judgment in Case C-122/86 Epicheiriseon [1989] ECR 3959, paragraph 2 of the operative part of the judg- ment. 47 — Ibid., paragraphs 5 and 6. 46 — Sec the judgment in Joined Cases 83/76, 94/76, 4/77, 15/77 48 — See the Antillean Rice Mills judgment, cited in footnote 1, and 40/77 [1978] ECR 1209. paragraph 177, 189 et seq..

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89. The applicants challenge the judgment of the Court of First Instance in so far as it was held in that judgment that the Commission, when adopting the first decision, did not manifestly, and to a serious extent, exceed the limits of its discretion and that accordingly 92. The Commission submits, as against this, the Commission was not in serious breach of that the two criteria mentioned in paragraph 50 any superior principle of law, in the event the 194 of the judgment are to be regarded as principle of proportionality. The applicants synonymous. So far as the applicants' second contend that the Court of First Instance point (that the Court of First Instance was cannot confine itself to the issue of whether mistaken in finding that there was not a suf­ the Commission exceeded its powers. ficiently serious breach) is concerned, the

49 — See the HNL judgment, cited in footnote 46, paragraph 6. 50 — See paragraph 89 above.

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Commission contends that this is a factual superior principle of law for the protection of finding which cannot be reviewed on appeal. individuals) are related.

52 — See the Asteris judgment cited in footnote 51, paragraph 23. 51 — See the judgments in Case 20/88 Roquette Frères [1989] 53 — See the Grands Moulins de Paris judgment cited in footnote ECR 1553; Joined Cases 194/83 to 206/83 Asteris [1985] 51, paragraph 22. ECR 2815, and Case 50/86 Grands Moulins de Paris [1987] 54 — See the Roquette Frères judgment, cited in footnote 51, para- 4833. graph 23.

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101. The present case did not, admittedly, 99. In this connection it is also necessary to directly concern a calculation error. However, examine the applicants' argument that a breach as the Court of First Instance points out, the found in the course of a limited review is nec­ Commission, when adopting the first deci­ essarily sufficiently serious. As the Court of sion, referred in good faith to the price fixed First Instance itself observed, in cases where by the Antillean authorities. 58 It is impos­ the Commission has a broad discretion, the sible to see how, in doing so, the Commis­ Court must confine itself to considering sion manifestly and seriously exceeded its whether the exercise of that discretion con­ discretion. Therefore it does not appear that tains a manifest error or constitutes a misuse there was any error on the part of the Court of powers or whether the Commission clearly of First Instance either. The fact that, in prin- 56 exceeded the bounds of its discretion.

57 — See the Roquette Frères judgment, cited in footnote 51, para- 55 — See paragraph 69 et seq. above. graph 26. 56 — See the Antillean Rice Mills judgment, cited in footnote 1, 58 — See the Antillean Rice Mills judgment, cited in footnote 1, paragraph 122. paragraphs 191 and 194.

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ciple, the Commission must take account of of First Instance considered the question of the negative effects of its decision makes no foreseeability only to provide additional sup­ difference. Consequently the fifth ground of port for its conclusion. appeal is unfounded.

was held that, even if the applicants had suf­ The Court of First Instance examined the fered a certain amount of damage as a result nature of the damage suffered by the appli­ of the first decision, that damage was in no cants. On this point it observed that they had way unforeseeable, so that they could have explained that cargoes of rice were sold either taken precautions against it. In the applicants' while they were still at sea or after they submission, the fact that a breach of Com­ arrived at a Community port. In the latter munity law was foreseeable cannot exempt case, the rice was placed in a warehouse until the Community from liability. Furthermore, it was delivered to a buyer. Such warehousing the conclusion reached by the Court of First was thus normal, even in the absence of any Instance that the damage to the applicants did safeguard measure taken by the Community. not exceed the economic risks inherent in the On the basis of the documents, the Court sector in question cannot be justified solely reached the conclusion that the periods of by the fact that the storage of the rice neces­ warehousing and possible resultant delay in sitated by the safeguard measures was not selling the rice were not necessarily made unusually long. longer as a result of the first decision. 60 This alone shows that the Court was correct in finding that the damage did not exceed what an individual could properly be expected to accept in sectors coming within the ambit of economic policy. As the Commission cor­ 103. According to the Commission, on the rectly noted, the Court's other observations other hand, the Court of First Instance exam­ ined the issue of damage and whether it exceeded the limits of what an individual might be expected to accept, according to the 59 — See the HNL judgment cited in footnote 46, paragraph 6. 60 — See the Antillean Rice Mills judgment, cited in footnote 1, case law of the Court of Justice. The Court paragraph 204.

105. Although this ground of appeal as a whole must be dismissed in its entirety, I would none the less make it clear, in conclu­ sion, that safeguard measures can jeopardise 106. Under Article 122(1) of the Rules of investments in the OCT , make it difficult to Procedure of the Court of Justice, where the estimate costs, and undermine confidence. appeal is unfounded, the Court is to make a Whether safeguard measures which, whilst decision as to costs. Under the first sentence being legally permissible, are economically of Article 69(2) the unsuccessful party is to and politically advisable is not a question be ordered to pay the costs if they have been which can be reviewed by the courts because applied for in the successful party's pleadings. their power of review is limited to whether The first sentence of Article 69(4) provides the measures are lawful and, because of the that the Member States which intervene in broad discretion involved, they will be the proceedings are to bear their own costs.

E — Conclusion

107. I therefore propose that the Court should :

(1) dismiss the appeal ;

(2) order the applicants to pay the costs of the proceedings , with the exception of the costs of the French Republic and the Italian Republic ;

(3) order the French Republic and the Italian Republic to bear their own costs .