T-18/95

ATLANTA AND INTERNATIONALE FRUCHTIMPORT GESELLSCHAFT WEICHERT v COMMISSION

O R D E R O F T H E C O U R T O F FIRST I N S T A N C E (Fourth Chamber) 10 December 1996 *

In Case T-18/95,

Atlanta Handelsgesellschaft Harder & Co. GmbH, a company governed b y German law, established in Bremen (Germany),

Internationale Fruchtimport Gesellschaft Weichert & Co., a company governed by German law, established in Hamburg (Germany),

represented by Erik A. Undritz, Gerrit Schohe and Helge Schäfer, of the Hamburg Bar, with an address for service in Luxembourg at the Chambers of Marc Baden, 34 B Rue Philippe II,

ORDER OF 10. 12. 1996 — CASE T-18/95

V

Commission of the European Communities, represented by Dierk Booß, Legal Adviser, and Klaus-Dieter Borchardt, 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,

supported by

United Kingdom of Great Britain and Northern Ireland, represented by Stephen Braviner, of the Treasury Solicitor's Department, acting as Agent, assisted by David Anderson, Barrister, of the Bar of England and Wales, with an address for service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Fourth Chamber),

composed of: K. Lenaerts, President, P. Lindh and J. D. Cooke, Judges,

Registrar: H . Jung,

makes the following

Order

Relevant legislation

4 Article 15(1) provides that traditional imports from A C P States ('traditional A C P bananas') are to correspond to the quantities of bananas set out in the annex to Regulation N o 404/93 exported by each A C P State which has traditionally exported bananas to the Community. Bananas exported by A C P States in excess of those quantities ('non-traditional ACP bananas') are to be treated as third-country bananas save where they are subject to lower duties.

5 Article 18(1) of Regulation N o 404/93 provides for the opening of a tariff quota of 2 million tonnes each year for imports of third-country bananas and non- traditional A C P bananas. The quota may be adjusted in certain circumstances.

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6 The tariff quota was increased to 2 118 000 tonnes for 1994 by Commission Regu- lation (EC) N o 2352/94 of 29 September 1994 increasing the tariff quota for 1994 and laying down an additional period during the fourth quarter for submitting applications for import licences for bananas in respect of that year (OJ 1994 L 254, p. 61).

7 Article 19 of Regulation N o 404/93 provides that 66.5% of the tariff quota is open to the category of operators who marketed third-country and/or non-traditional A C P bananas (category A), 30% to the category of operators who marketed C o m - munity and/or traditional A C P bananas (category B) and 3.5% to the category of operators established in the Community who started marketing bananas other than Community and/or traditional ACP bananas from 1992 (category C).

2. The additional quantity of 53 400 tonnes (net weight) shall be allocated to the operators determined in accordance with Article 2 below as follows:

(a) 30 000 tonnes for operators supplying the Community with bananas produced in Martinique;

(b) 5 900 tonnes for operators supplying the Community with bananas produced in Guadeloupe;

(c) 14 800 tonnes for operators supplying the Community with bananas produced in Saint Lucia;

(d) 2 700 tonnes for operators supplying the Community with bananas produced in Dominica.'

n The additional 53 400 tonnes of bananas result from the Commission's revision of the forecast supply balance for 1994 following the storm, reducing Community production by 35 900 tonnes to 607 10O tonnes and imports from the A C P States by 17 500 tonnes to 648 500 tonnes. As a result, the Community banana market had a shortfall in supply of 53 400 tonnes.

is By application lodged at the Registry of the Court of First Instance on 7 February 1995 the applicants sought the annulment of Regulation N o 2791/94, with the exception of Article 1(1) thereof. O n 30 March 1995 the Commission lodged an objection of inadmissibility. O n 12 June 1995 the applicants lodged their observa- tions on that objection.

i6 O n 13 July 1995 the Federal Republic of Germany sought leave to intervene in support of the applicants.

i7 O n 19 and 27 July 1995 respectively the United Kingdom of Great Britain and Northern Ireland and the French Republic sought leave to intervene in support of the Commission.

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is By orders of the President of the Fourth Chamber of the Court of First Instance made on 7 November 1995 the Federal Republic of Germany was given leave to intervene in support of the applicants and the French Republic and the United Kingdom were given leave to intervene in support of the defendant.

2i The Federal Republic of Germany submits that the Court of First Instance should:

— dismiss the defendant's claim.

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ATLANTA AND INTERNATIONALE FRUCHTIMPORT GESELLSCHAFT WEICHERT v COMMISSION

22 The French Republic contends that the Court of First Instance should:

— dismiss the application.

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influence whatsoever on the legal position of operators who, like the applicants, did not suffer damage in the storm.

27 As regards the question whether the applicants are individually concerned, the Commission recalls that there is a well-established line of decisions to the effect that '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, so long as it is estab- lished that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question' (orders of the Court of Justice in Case C-131/92 Arnaud and Others v Counál [1993] ECR 1-2573, paragraph 13, and Case C-276/93 Chiquita Banana and Others v Council [1993] ECR 1-3345, paragraph 8). The Commission submits that Article 2(1) of Regulation N o 2791/94 provides for the additional quota to be allocated on the basis of objective criteria and is therefore a general, abstract provision.

28 T h e C o m m i s s i o n p o i n t s o u t t h a t the applicants' legal p o s i t i o n m u s t b e affected b e c a u s e of a factual s i t u a t i o n w h i c h differentiates t h e m f r o m all o t h e r p e r s o n s a n d distinguishes t h e m individually in the same w a y as a p e r s o n t o w h o m t h e m e a s u r e is addressed (Case 26/86 Deutz und Geldermann v Counál [1987] E C R 941, para- graph 9). The fact that the applicants are operators in category A cannot be regarded as a special factual situation within the meaning of that case-law. In any event, category A operators are not the only ones ineligible for the additional quota; category C operators are also excluded.

32 Furthermore, the Commission's argument has the result of making actions brought by disadvantaged competitors automatically inadmissible; any competitor not eligible under the scheme established by the regulation is considered not to be directly concerned because the regulation is not applicable to him.

33 The applicants rely on three arguments to show that they are individually con- cerned by the regulation.

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36 Secondly, they claim that Regulation N o 2791/94 is not applicable on the basis of an objective situation of law or fact defined by the measure in question, because it applies in only one situation, the once-off allocation of an exceptional quota to cer- tain operators. They add that in that regard the contested regulation differs from Regulation N o 404/93.

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ATLANTA AND INTERNATIONALE FRUCHTIMPORT GESELLSCHAFT WEICHERT v COMMISSION

37 Thirdly, they maintain that they will be deprived of effective legal protection if their action is declared inadmissible. It is not possible for them to challenge the 'tropical storm Debbie' import licences granted to certain operators in category B in the national courts because they are unable to obtain information as to the con- tent of those licences. It is also impossible for them to seek such licences before the national courts since such proceedings would have to be based on the assumption that the contested regulation is valid, thereby excluding the issue of its validity from the dispute.

38 The Federal Republic of Germany considers that the applicants are individually concerned because they belong to a closed circle of operators, so that any interven- tion in that circle to the advantage of a certain group of operators automatically affects the others. Relying on the judgment in Case C-309/89 Codorniu v Council [1994] ECR 1-1853, it submits that in that case the Court found that the fact that the applicant would be excluded from the circle of addressees advantaged by the contested regulation was sufficient ground for declaring the action admissible. I n this case, Regulation N o 2791/94 withdraws from the applicants a right acknowl- edged by Article 19 of Regulation N o 404/93.

42 The French Republic considers that Regulation N o 2791/94 is undoubtedly a regu- lation of general economic scope since it seeks to remedy the consequences of a natural disaster which destroyed a large portion of the A C P and Community banana production. The measure reflects the aims of the common agricultural policy regarding stabilization of the market and supplies of bananas to Commu- nity consumers at reasonable prices. The way in which the import licences for the additional quantity introduced by Regulation N o 2791/94 are allocated results from the purpose of the regulation, which is to assist Community and ACP opera- tors, w h o alone suffered damage as a result of tropical storm Debbie. In the light of that aim it is therefore appropriate for operators not affected by the storm not to be able to take advantage of measures which do not apply to their situation. The allocation of the additional quantity of bananas between the operators who suf- fered damage and who are defined objectively does not therefore alter the general scope of the measure, even if that criterion would enable the beneficiaries of the measure to be identified.

43 The French Republic also considers that the judgment in Codornitt is not appli- cable in this instance. In the first place, the contested measure in no way affected the existing situation of importers of third-country bananas, including the appli- cants, as regards the quota provided for by Regulation N o 404/93. In the second place, the fact that the applicants have not been able to benefit from the additional

46 As regards, first, the question whether they are individually concerned, the Court notes that the purpose of Regulation N o 2791/94 is to remedy the consequences of a natural disaster and that it conforms with the aims of the common agricultural policy regarding stabilization of the market and the maintenance of reasonable prices for banana supplies to Community consumers. The operators amongst

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whom the additional quantity added to the general tariff quota is allocated are defined in an objective way in the light of the damage caused by tropical storm Debbie of which they were victims. It has consistently been held that the fact that it is possible to determine the number or even the identity of the persons to whom a measure applies in no way implies that those persons must be considered to be individually concerned, provided that implementation occurs on the basis of an objective legal or factual situation defined by the measure in question (Case T-472/93 Campo Ebro and Others v Council [1995] E C R 11-421, paragraph 32, and Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Com- mission [1995] E C R 11-2305, paragraph 65). In this case, it is clear that Regulation N o 2791/94 constitutes a legislative measure of general scope.

47 However, the fact that the contested measures are legislative in character does not prevent them from being potentially of individual concern to some of the traders concerned (Case C-358/89 Extramet Industrie v Council [1991] ECR 1-2501, para- graph 13; Codorniu, paragraph 19, and Antillean Rice Mills, paragraph 66). In order that a general measure adopted by a Community institution may be regarded as of individual concern to some traders, they must be shown to be affected in their legal position by reason of a factual situation which differentiates them from all other persons and which distinguishes them individually in a manner analogous to that of an addressee (Case 25/62 Pkumann v Commission [1963] ECR 95, at p. 107, and Antillean Rice Mills, paragraph 66).

so The Court also finds that the applicants' argument to the effect that they will be deprived of effective legal protection if their action is declared inadmissible is not a ground for the Court to exceed the limits of its jurisdiction under the fourth para- graph of Article 173 of the Treaty. In any event, the applicants have not clearly identified the obstacles which they claim prevent them from challenging before the national courts the decision of the competent authorities of the Member State t o which they belong to the effect that they do not satisfy the conditions laid down in Article 2 of Regulation N o 2791/94, and from challenging the validity of those conditions on the basis of the way in which they have been applied (see paragraph 13, above). Such a course of action would enable the national courts concerned t o refer to the Court of Justice for a preliminary ruling under Article 177 of the Treaty the questions which they deem appropriate in the context of the dispute before them (Case T-330/94 Salt Union v Commission [1996] ECR 11-1475, para- graph 39).

si The considerations set out above indicate that Regulation N o 2791/94 cannot be regarded as concerning the applicants individually. Consequently, the question whether they are directly concerned by the regulation becomes superfluous.

52 Accordingly, the objection as to admissibility raised by the Commission must be upheld and the action declared inadmissible.

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Costs

Luxembourg, 10 December 1996.

H. Jung K. Lenaerts

Registrar President

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