C-393/96

the other parties to the proceedings being:

Council of the European Union, represented by G. Houttuin, A.-M. Colaert and J.-P. Hix, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of B. Eynard, Director General of the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

* Language of the case: Dutch.

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and

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Facts and procedure

2 The factual background to the proceedings is set out in the order under appeal as follows:

' 1 . The applicant, Mr J. Antonissen, is successor to his late father-in-law, Mr A. A. Herbrink, established at Giethem, in the Netherlands. Mr Herbrink was a SLOM ("Staking van de Levering van melk en zuivelprodukten en Omschakeling van het Melkveebestand" — cessation of deliveries of milk and milk products and conver- sion of dairy herds) producer who had not marketed any milk or milk products between 17 May 1979 and 17 May 1984, having given a non-marketing undertak- ing under Council Regulation (EEC) N o 1078/77 of 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds (OJ 1977 L 131, p. 1), as subsequently amended.

2. O n the expiry of his SLOM agreement, Mr Herbrink applied for a special refer- ence quantity, or "milk quota", for 1984 under Council Regulation (EEC) N o 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) N o 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13), which had just entered into force; however, the Netherlands authorities refused his application on the ground that he had not produced any milk during 1983, the reference year.

6. Mr Herbrink again sought judicial review of that decision by the College van Beroep voor het Bedrijfsleven, which sought a preliminary ruling from the Court of Justice on a number of questions concerning, in particular, the requirement imposed by, inter alia, Article 3a(l) of Regulation N o 1546/88, that a SLOM pro­ ducer wishing to obtain a special reference quantity must prove that he still oper­ ates, in whole or in part, the same holding as he operated at the time of the approval of his SLOM premium application.

7. In its judgment delivered on 27 January 1994 (Case C-98/91 Herbrink v Minister van Landbouw, Natuurbeheer en Visserij [1994] E C R 1-223), the Court of Justice did not declare the Community provision in question invalid, but interpreted it as not precluding a SLOM producer from being able, even after the expiry of his lease, to benefit from a special reference quantity if he intends to pursue milk production.

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8. In the national proceedings resumed before the College van Beroep voor het Bedrijfsleven, the national authorities adhered to a strict interpretation of the con- ditions for granting a special reference quantity and did not avail themselves of the possibility provided for in Article 7(4) of Regulation N o 857/84. They therefore informed Mr Herbrink that he could not benefit from a special reference quantity.

9. The College van Beroep voor het Bedrijfsleven upheld the reasoning of the national authorities and, in its decision of 14 May 1996, dismissed Mr Herbrink's application. Consequently, since no appeal lies against the decision of the College van Beroep voor het Bedrijfsleven, the decision of 2 February 1990 refusing to grant Mr Herbrink a special reference quantity has become conclusive.

13. The applicant considers himself unable to pay the amount due and fears that the dairy may not be inclined to take his particular circumstances into account by discharging his obligation to pay or by allowing him special terms or deferred payment.'

3 By application lodged at the Registry of the Court of First Instance on 11 Novem­ ber 1996, the appellant sought an order that the Community make good the dam­ age which he has suffered, and may suffer in the future, as a result of the refusal to allocate a special reference quantity to him or his predecessor in title since the non- marketing undertaking given by Mr Herbrink. H e also sought payment of (i) the sum of H F L 258 565.38, corresponding to the supplementary levy due from him and the partnership of which he formed part in respect of the milk produced by them following the expiry of the non-marketing undertaking, together with inter­ est thereon, (ii) the sum of H F L 58 695, resulting from the application of Council Regulation (EEC) N o 2187/93 of 22 July 1993 providing for an offer of compensa­ tion to certain producers of milk and milk products temporarily prevented from carrying on their trade (OJ 1993 L 196, p. 6) over the periods following the expiry of the non-marketing undertaking, during which the applicant or his predecessor in title produced no milk, together with interest thereon, and (iii) the sum of H F L 180 322.20, representing the costs of obtaining a substitute reference quantity equal to the reference quantity to which he would have been entitled had he still been operating Mr Herbrink's original holding.

6 After examining the parties' arguments as to whether the measures sought were of a provisional nature, the order under appeal points out, in the first place, that the measures provided for in Articles 185 and 186 of the Treaty cannot have any object other than to safeguard, during the course of the procedure before the Court, the interests of one of the parties to the proceedings in order to prevent the judgment in the main proceedings from being deprived of any practical effect and that they must therefore not prejudge the decision on the substance of the case (para- graph 29).

7 In the present case, the measures sought in the interlocutory application corre- sponded to part of the measures sought in the main application and would thus, if granted, anticipate the argument on the substance of the case. However, 'a rinding of liability, with the effects thereby entailed, cannot be taken on the basis of a prima facie case; it must be based on a definitive assessment of the facts and pleas in law put forward, and therefore requires that a procedure be followed in which all the parties are guaranteed the right to a fair hearing' (paragraph 30).

8 The application for interim measures is therefore dismissed on that ground 'with- out there being any need to consider whether the pleas in law and arguments put forward by the applicant in justification of the measure sought are well founded' (paragraph 31).

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9 In the present appeal, the appellant seeks an order setting aside the order under appeal, referring the case back to the Court of First Instance and ordering the Council and the Commission to pay the costs.

ORDER OF 29. 1. 1997 — CASE C-393/96 P(R)

14 The respondents submit that the sum of H F L 258 565.38 does correspond to a distinct part of the compensation sought in the main action, as the President of the Court of First Instance rightly pointed out, and that the sum of H F L 20 000 per annum is nothing other than payment of damages in advance although it has not yet been established that the appellant will be liable to pay a supplementary levy on the quantity of milk he produces.

15 In his second plea in law, the appellant alleges infringement or misapplication of Article 186 of the Treaty in that, according to the order under appeal, the measures sought could only be granted, as such, on the basis of a definitive assessment of the facts and pleas in law put forward and must therefore be refused without an examination of the pleas and arguments which he had put forward in support of his application.

16 O n the contrary, he submits, the facts and circumstances put forward in his appli- cation to show that if the interim measures sought were not granted the judgment in the main case would be deprived of practical effect should have been taken into consideration. An interim measure in the form of granting (by way of advance) a part of the compensation sought in the main proceedings is not, he claims, incon- sistent with the conditions for or nature of an interim application. H e refers to the approach prevailing in Netherlands law.

17 The respondents reply, essentially, that paragraph 30 of the order under appeal is based on correct reasoning and refer in support to the order of the President of the Court of First Instance in Cases T-278/93 R and T-555/93 R, T-280/93 R and T-541/93 R Jones and Others v Council and Commission [1994] E C R II-11, para- graph 54. They add that, in any event, there is absolutely no prima facie case. They stress, finally, that granting the interim measures sought would in fact amount to ordering the Community definitively to pay a major part of the compensation claimed.

21 The third and fourth pleas in law raised in the appeal must be dismissed at once.

22 Both the question whether measures other than those expressly sought by the applicant should be envisaged and the question whether to hear oral argument from the parties are matters which fall within the discretion of the judge dealing with an application for interim measures.

23 In that context, the few points put forward by the appellant, relating essentially to the specific nature of his situation and the novelty of the legal questions raised by

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his application, do not reveal that the President of the Court of First Instance overstepped the bounds of his discretion, contrary to Article 186 of the Treaty or the audi alteram partem rule, by declining to envisage measures other than those expressly sought by the applicant or to hear oral argument from the parties.

prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable damage to the applicant's interests, it must be made and produce its effects before a decision is reached in the main action. Such an order must further be provisional inasmuch as it must not prejudge the points of law or fact in issue or neutralize in advance the effects of the decision subsequently to be given in the main action.

28 In the context of that overall examination, the judge dealing with the application enjoys a broad discretion to determine the manner in which those various condi­ tions are to be examined. That discretion must be exercised in the light of the spe­ cific circumstances of each case (see Atlantic Container Line and Others, cited above, paragraph 23).

29 At paragraph 30 of the order under appeal, the measures sought in the interim application are described as being 'in part the measures sought in the main applica­ tion — an order against the Community to pay the amounts claimed'.

30 Such measures would thus, it is stated in the order under appeal, anticipate the argument on the substance of the case and therefore require a definitive assessment of the facts and pleas in law put forward, following a procedure in which all the parties are guaranteed the right to a fair hearing.

31 Neither the importance of the prima facie case put forward by applicant nor the degree of urgency which he alleged seem to have been taken into consideration in that reasoning.

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for the full effectiveness of the definitive future decision (see, inter alia, the judg­ ments in Case C-213/89 Factortame and Others [1990] E C R I-2433, paragraph 21, and in Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415, paragraphs 16 to 18, and the order in Case C-399/95 R Germany v Commission [1996] ECR I-2441, paragraph 46).

37 It is therefore not possible to rule out in advance, in a general and abstract manner, that payment, by way of an advance, even of an amount corresponding to that sought in the main application, may be necessary in order to ensure the practical effect of the judgment in the main action and may, in certain cases, appear justified with regard to the interests involved.

38 Only by examining the factual circumstances, and in particular the state of the appellant's assets, is it possible in particular to assess whether it would in fact be possible to recover any payment by way of advance when judgment is delivered in the main action.

39 Such a measure, if granted, would not necessarily prejudge the decision on the substance of the case, since an interim measure lapses when final judgment is deliv- ered.

43 The appeal must therefore be allowed and the order under appeal set aside, since the statement of reasons given in it does not show that an assessment was made of the application for interim measures on the basis of the circumstances of the case.

44 Under the first paragraph of Article 54 of the EC Statute of the Court of Justice, if an appeal is well founded, the Court of Justice is to quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.

45 Since that provision applies also to appeals brought under the second paragraph of Article 50 of the EC Statute of the Court of Justice, the case must be referred back to the Court of First Instance for judgment.

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O n those grounds,

R. Grass G. C. Rodríguez Iglesias

Registrar President

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