T-47/95

represented by Michel Aurillac, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Charles Duro, 4 Boulevard Royal,

applicants,

v

Commission of the European Communities, represented by Theofanis Christoforou, Yves Renouf and Gérard Berscheid, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

* Language of the case: French.

French Republic, represented by Catherine de Salins, Assistant Director in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and Frédéric Pascal, Central Administrative Attaché, acting as Agents, with an address for service in Luxembourg at the French Embassy, 9 Boulevard du Prince Henri,

interveners,

APPLICATION for annulment of Commission Regulation (EC) N o 3224/94 of 21 December 1994 laying down transitional measures for the implementation of the Framework Agreement on Bananas concluded as part of the Uruguay Round of multilateral trade negotiations (OJ 1994 L 337, p. 72),

II - 484

TERMS ROUGES AND OTHERS v COMMISSION

T H E COURT O F FIRST INSTANCE O F T H E EUROPEAN COMMUNITIES (Fourth Chamber, Extended Composition),

1 Council Regulation (EEC) N o 404/93 of 13 February 1993 on the common organization of the market in bananas (OJ 1993 L 47, p. 1; 'Regulation N o 404/93'), as last 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 concluded during the Uruguay Round of multilateral trade negotiations (OJ 1994 L 349, p. 105), established a common organization of the market in bananas.

2 Article 15 of Regulation N o 404/93 draws a distinction in particular between:

— traditional imports of bananas from ACP States up to the quantitative limits set in the annex thereto ('traditional ACP bananas');

II - 485

JUDGMENT OF 9. 4. 1997 — CASE T-47/95

— non-traditional imports from ACP States exceeding the quantities set for traditional ACP bananas ('non-traditional ACP bananas');

II - 486

TERRES ROUGES AND OTHERS v COMMISSION

6 In order to find a satisfactory p e r m a n e n t solution to the dispute between the Latin American countries and the C o m m u n i t y , the latter gave notice in O c t o b e r 1993 of its intention to unbind, o n the basis of Article X X V I I I of GATT, the customs d u t y on bananas referred t o in its schedule of concessions lodged with G A T T and to enter into negotiations with the parties primarily concerned within the meaning of that article.

7 T h e C o m m i s s i o n commenced negotiations relating to that unbinding, which in March 1994 led to a framework agreement on bananas ('the F r a m e w o r k Agree- ment') with the Latin American countries concerned, other than Guatemala.

8 T h e F r a m e w o r k Agreement provided in particular for a reduction from E C U 100 t o E C U 75 p e r t o n n e in the d u t y payable o n t h i r d - c o u n t r y bananas within the tariff quota.

9 It also divided u p that quota into specific quotas allocated as follows:

1 1 Commission Regulation (EC) N o 3224/94 of 21 December 1994 laying down tran- sitional measures for the implementation of the Framework Agreement on Bananas concluded as part of the Uruguay Round of multilateral trade negotia- tions (OJ 1994 L 337, p. 72; 'Regulation N o 3224/94' or the 'contested regulation') laid down transitional measures applying the arrangements for importing bananas into the Community pending adoption of definitive measures.

12 It also divided up the 90 000 tonnes of non-traditional ACP bananas as follows:

Country Quantity in tonnes

Dominican Republic 55 000 Belize 15 000 Côte d'Ivoire 7 500 Cameroon 7 500 Others 5 000

1 3 Regulation N o 3224/94 was adopted, in particular, on the basis of Article 20 of Regulation N o 404/93, which authorizes the Commission to adopt detailed rules for implementing Title IV (Trade with third countries).

14 The three applicant companies are responsible for importing and marketing 70% of Côte d'lvoire's banana production.

18 On 9 June 1995, the applicants lodged their observations on that objection.

19 On 20 July 1995, the Kingdom of Spain lodged an application for leave to inter- vene in support of the form of order sought by the Commission.

20 On 27 July 1995, the French Republic lodged an application for leave to intervene in support of the form of order sought by the Commission.

2 1 By order of the Court of First Instance (Fourth Chamber) of 26 October 1995, the objection of inadmissibility was joined to the substance of the case. By orders made on the same day by the President of the Fourth Chamber, the Council, the Kingdom of Spain and the French Republic were granted leave to intervene in support of the form of order sought by the Commission.

II - 489

JUDGMENT OF 9. 4. 1997 — CASE T-47/95

— order the Commission to pay the costs.

II - 490

TERRES ROUGES AND OTHERS v COMMISSION

26 The Commission claims that the Court should:

— dismiss the action as inadmissible or, in the alternative, as unfounded;

— order the applicants to pay the costs.

II - 491

JUDGMENT OF 9. 4. 1997 — CASE T-47/95

Admissibility

Arguments of the parties

32 The Commission, supported by Spain, France and the Council, claims that the action for annulment is inadmissible on the ground that Regulation N o 3224/94 is not of direct and individual concern to the applicants within the meaning of the fourth paragraph of Article 173 of the EC Treaty.

33 The applicants submit, first, that they import 70% of Côte d'lvoire's production and that one of them, Terres Rouges Consultant, imports bananas from that coun- try only.

37 The applicants are accordingly directly concerned by the substantial reduction in tariff quota entitlement for non-traditional ACP bananas from Côte d'Ivoire.

38 They are also individually concerned because they account for 70% of imports from Côte d'Ivoire. Although in 1994 they had been able to import approximately 35 000 tonnes of non-traditional ACP bananas into the Community, namely 70% of the 50 000 additional tonnes, they can henceforth import only 5 250 tonnes each year, that is to say 70% of the 7 500 tonnes allocated to Côte d'Ivoire.

Findings of the Court

39 As the Court of Justice and the Court of First Instance have consistently held, the fourth paragraph of Article 173 of the Treaty gives individuals the right to chal- lenge any decision which, although in the form of a regulation, is of direct and individual concern to them. The particular purpose of that provision is to prevent the Community institutions from being able, simply by choosing to use the form of a regulation, to preclude an individual from bringing an action against a decision which concerns him directly and individually and thus to make it clear that the nature of a measure cannot be changed by the form chosen (see Joined Cases 789/79 and 790/79 Calpak and Società Emiliana Lavorazione Frutta v Commission [1980] ECR 1949, paragraph 7, and Case T-298/94 Roquette Frères v Council [1996] ECR II-1531, paragraph 35).

II - 493

JUDGMENT OF 9. 4. 1997 — CASE T-47/95

II - 494

TERRES ROUGES AND OTHERS v COMMISSION

44 However, the possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them (Case 123/77 UN I CM E v Council [1978] ECR 845, paragraph 16).

45 In that regard, the legislative provisions relevant to this dispute should be borne in mind. Article 19 of Regulation N o 404/93 provides that the tariff quota is to be opened as to 66.5% for the category of operators who marketed third-country and/or non-traditional ACP bananas (category A); as to 30% for the category of operators who marketed Community and/or traditional ACP bananas (category B); and as to 3.5% for the category of operators established in the Community who started marketing bananas other than Community and/or traditional ACP bananas from 1992 (category C). Supplementary criteria to be met by operators are to be laid down in accordance with the procedure provided for in Article 27 of the regulation. Operators who satisfy those conditions and who are granted import licences by the competent authorities of the relevant Member State may import third-country or non-traditional ACP bananas within the tariff quota, whatever category of importer they fall within.

46 In addition, the Court of Justice has held that the purpose of Articles 18 and 19 of Regulation N o 404/93 is to establish arrangements for trade in bananas with third countries and a mechanism for the allocation of the tariff quota between categories of traders defined according to objective criteria. Those provisions accordingly apply to situations which have been determined objectively and have legal effects as regards categories of persons viewed in a general and abstract manner. It follows that the contested measure is of concern to the applicants only in their objective capacity as traders engaged in the marketing of bananas from third countries in the same way as any other trader in an identical position (order of 21 June 1993 in Case C-276/93 Chiquita Banana Company and Others v Council [1993] ECR 1-3345, paragraphs 10, 11 and 12).

51 Secondly, as the Commission stated at the hearing and the applicants did not dis- pute, the total amount of traditional ACP and non-traditional ACP bananas exported from Côte d'Ivoire in 1993 and 1994 after the new arrangements had

II - 496

TERRES ROUGES AND OTHERS v COMMISSION

been established by Regulation N o 404/93 did not exceed 160 000 tonnes per year. Those exports did not therefore exceed the quantity of 162 500 tonnes constituted by the reserve of 155 000 tonnes of traditional ACP bananas and the share of 7 500 tonnes of non-traditional ACP bananas reserved for Côte d'Ivoire by Regulation N o 3224/94. The truth is that the figure of 50 000 tonnes quoted by the applicants is only an estimate of the potential production of Côte d'lvoire's plantations and does not refer to current exports. Contrary to the applicants' submissions, there- fore, their position has not in actual fact been affected by the adoption of Regu- lation N o 3224/94.

52 F u r t h e r m o r e , the Vice-President of the C o m m i s s i o n , in his letter of 12 July 1993 cited b y the applicants (see paragraph 35 of this judgment), did not consider that the figure of 200 000 tonnes represented the a m o u n t of C ô t e d'lvoire's current p r o d u c t i o n . O n the contrary, he stated: '... I was fully informed of the investment carried out in y o u r c o u n t r y which is to take banana p r o d u c t i o n above 200 000 tonnes per year and I can assure y o u that that information was also b r o u g h t to the attention of the Council. Moreover, it was that information which enabled the Council t o set a traditional quantity for C ô t e d'Ivoire which exceeds by far the quantity which would result from an interpretation of provisions of the L o m é Convention.'

56 Accordingly, Regulation N o 3224/94 is not of individual concern to the applicants.

57 Although it is not strictly necessary to address the question whether the applicants are directly concerned by that regulation, it should be added, that it affects their legal position only in an indirect manner. Article 17 of Regulation N o 404/93 requires every importer wishing to import third-country bananas to obtain an import licence. Under Articles 17 and 19, it is for the Member States to determine the number of import licences to be issued to each importer and to issue those licences.

II - 498

TERRES ROUGES AMD OTHERS v COMMISSION

58 In those circumstances, only the decisions of the M e m b e r States granting or refus- ing such licences are capable of concerning t h e applicants directly. T h e fact that a certain quantity of bananas is allocated t o C ô t e d'Ivoire by Regulation N o 3224/94 is n o t capable of affecting t h e applicants' legal position directly since they remain free t o i m p o r t bananas from any third c o u n t r y or A C P c o u n t r y within the tariff q u o t a provided that they have obtained t h e necessary i m p o r t licences.

59 N o r have the applicants established that in appropriate circumstances it would be impossible for them to challenge t h e validity of Regulation N o 3224/94 before a national court, for example in an action b r o u g h t against a refusal by the competent national authorities t o issue them with i m p o r t licences for non-traditional A C P bananas from C ô t e d'Ivoire, and t o request t h e national court t o seek a prelimi- nary ruling in that regard from t h e C o u r t of Justice p u r s u a n t t o Article 177 of t h e Treaty.

T H E C O U R T O F FIRST INSTANCE (Fourth Chamber, Extended Composition)

hereby:

1. Dismisses the action as inadmissible;

2. Orders the applicants to bear jointly and severally the costs incurred by the defendant;

3. Orders the interveners to bear their own costs.

Lenaerts Lindh Azizi