T-79/96

CAMAR v COMMISSION

ORDER O F T H E PRESIDENT O F T H E COURT O F FIRST INSTANCE 21 March 1997 *

In Case T-79/96 R,

Camar Sri, a company incorporated under Italian law, having its registered office in Florence, represented by Wilma Viscardini Dona, assisted by Mariano Paolin and Simonetta Dona, of the Padua Bar, with an address for service in Luxembourg at the Chambers of Ernst Arendt, 8-10 Rue Mathias Hardt,

applicant,

supported by

Commission of the European Communities, represented by Eugenio de March, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirch- berg,

defendant,

supported by-

French Republic, represented by Frédéric Pascal, Attaché, and Catherine de

Salins, Assistant Director in the Legal Affairs Directorate of the Ministry of For-

eign Affairs, acting as Agents, with an address for service in Luxembourg at the

makes the following

Order

The relevant provisions

1 Council Regulation (EEC) N o 404/93 of 13 February 1993 on the common organ- ization of the market in bananas (OJ 1993 L 47, p. 1, 'Regulation N o 404/93') established, as from July 1993, a common system for imports in place of the vari- ous national systems previously prevailing. Regulation N o 404/93 was subse- quently amended by Council Regulation (EC) N o 3290/94 of 22 December 1994 on the adjustments and transitional arrangements required in order to implement the agreements concluded during the Uruguay Round of multilateral trade nego- tiations (OJ 1994 L 349, p. 105).

2 Under the arrangements on trade with third countries, which are the subject of Title IV of Regulation N o 404/93, a tariff quota is to be opened each year for imports of third-country bananas and non-traditional ACP bananas. The terms 'traditional imports' and 'non-traditional imports' arc defined in Article 15a of Regulation N o 404/93. 'Traditional imports from ACP States' means the quantities of bananas, specified in the annex to Regulation N o 404/93, exported by each ACP

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5 Article 16(1) requires a forecast supply balance to be prepared each year on pro- duction and consumption in the Community and of imports and exports.

According to Article 16(3):

'Where necessary, in particular to take account of the effects of exceptional circum- stances affecting production or import conditions, the balance may be adjusted during the marketing year. In such a case, the tariff quota provided for in Article 18 shall be adapted in accordance with the procedure laid down in Article 27.'

6 Article 30 is worded as follows:

9 1983 also saw the formation of Somalfruit SpA, a semi-public corporation in which the Somali Government has a minority holding and the majority holding belongs to the Italian investment group which created Camar. That company pro- duces Somalian bananas.

10 Between 1984 and 1990 Somalian banana cultivation reached its zenith, attaining an annual production of 90/100 000 tonnes. Part of that production was imported into Italy by Camar. In 1990, specifically, Camar imported 45 130 tonnes.

1 1 On 31 December 1990 civil war broke out in Somalia and the normal flow of Camar's imports was interrupted.

12 Camar continued supplying the Italian market by buying a quantity of bananas from two ACP countries, Cameroon and the Windward Islands, and from certain third countries.

1 3 From July 1993, when the common organization of the market was established, until the end of 1996, Camar was issued with Category A import licences (for 4 008.521 tonnes in 1993, 8 148, 691 tonnes in 1994, 3 423.761 tonnes in 1995 and 5 312.671 in 1996) and also with Category B licences (for quantities of 5 622.938 tonnes in 1993, 10 739.088 in 1994, 6 075.934 tonnes in 1995 and 2 948.596 tonnes in 1996).

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16 By application lodged at the Registry of the Court of First Instance on 28 May 1996, Camar requested the Court, first, to declare, in accordance with Article 175 of the EC Treaty, that 'the Commission has infringed Article 30 of Regulation N o 404/93 and the second subparagraph of Article 40(3) of the EC Treaty, by failing to take the steps necessary to enable the applicant to overcome the difficulties arising from the fact that, on account of the crisis in Somalia, it is impossible to procure sufficient quantities of Somalian bananas to meet traditional marketing needs, and from the fact that, by virtue of the restrictions imposed by Council Regulation N o 404/93, it is impossible to use bananas from other sources', second, to 'declare that the Commission is under a duty to take adequate measures for the future' and, third, to 'order the Commission to pay compensation, pursuant to Article 178 and the second paragraph of Article 215 of the EC Treaty, for the damage suffered by the applicant as a result of the Commission's failure to act'.

17 By separate document lodged at the Registry of the Court of First Instance on 27 January 1997, the applicant also applied for interim measures pursuant to Article 186 of the Treaty, seeking 'an order that in the course of 1997 the Commission should issue Camar Sri with additional licences for the import of bananas from non-member countries or non-traditional ACP States at the rate of duty applicable

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ORDER OF 21. 3. 1997 — CASE T-79/96 R

under the Common Customs Tariff in an amount equal to the difference between the quantity of Somalian bananas which Camar Sri is able to import in 1997 and the quantity imported by it during the years 1988, 1989 and 1990', and requesting 'in the alternative, that the Court should adopt such other measures pending final judgment on the action for declaration of failure to act (...) as it may think fit in order to prevent Camar from suffering irreparable damage'.

CAMAR v COMMISSION

measures sought must be provisional in that they must not prejudge the decision on the substance (see, most recently, Case T-6/97 R Comafrica and Dole v Com- mission [1997] ECR 11-291, paragraph 21).

Arguments of the parties

Prima facie case

22 As regards the existence of a prima facie case, the applicant points out that, accord- ing to the case-law of the C o u r t of Justice (Case C-280/93 R Germany v Council [1993] E C R I-3667 and Case C-68/95 T. Port v Bundesanstalt für Landwirtschaft und Ehnährung [1996] E C R I-6065, paragraphs 34 to 42), the C o m m i s s i o n is required to take action on behalf of traders, using the p o w e r s conferred on it b y Article 30 of Regulation N o 404/93, and adopt measures which derogate from the general rules laid d o w n b y that regulation. That obligation, according to the appli- cant, necessarily applies where the provisions concerning the c o m m o n organiza- tion of the markets in the banana sector are excessively restrictive of traders' fun- damental rights, for example the right to p r o p e r t y and the right to carry on business activities freely, on account of a particular situation caused by the organ- ization of domestic markets prior to the entry into force of Regulation N o 404/93 and linked to the transition from that organization to the C o m m u n i t y system.

23 According to the applicant, it is beyond dispute that since the establishment of the common organization of the markets Camar, which traditionally supplied the Ital- ian market, has been unable to replace Somalian bananas, which are in short supply because of the outbreak of civil war, with bananas either from other ACP coun- tries or from third countries. On the one hand, the Community system currently in force grants the benefit of exemption from tariff duties on traditional quantities only to traditional importers from those countries. Camar, therefore, cannot increase its imports from those countries so as to cover the shortfall in Somalian bananas compared with the quantities which it normally markets, except at the

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transition from existing domestic arrangements to the common organization of the markets and, second, the Italian national system did not provide for any mechan- ism for protecting the interests of importers of those bananas. In consequence, while the Commission intended, by adopting the measures concerning tropical storms, to ensure an adequate supply for the Community market and to provide some compensation for the traders who had suffered losses, such measures cannot be adopted where a country at war for some years either cannot guarantee at all, or can guarantee only with great difficulty, the production and marketing of bananas.

26 Moreover, the defendant maintains that such measures cannot be granted u n d e r Article 30 of Regulation N o 404/93, which the applicant relies on in alleging that the C o m m i s s i o n failed to act, within the meaning of Article 175 of the Treaty, since according to the case-law of the C o u r t of Justice Article 30 cannot serve as a basis for adopting regulations concerning tropical storms. T h a t article therefore cannot constitute a legal basis for the measures sought by the applicant.

27 Second, the Commission disputes the applicant's assertion that, as a result of the establishment of the common organization of the market, it can no longer replace Somalian bananas (unavailable because of the war) with other traditional ACP bananas. Not only is that assertion not supported by any evidence, but also it does not even correspond with the truth. The Commission points out in this connec- tion, first, that imports of traditional ACP bananas into the Community are still lower than forecast in the annex to Regulation N o 404/93 and various other non- traditional traders have begun to import into the Community ACP bananas from Côte d'Ivoire, Jamaica and Cameroon (as is apparent from the data supplied by the Member States and the Commission) and, second, that there is a new non- traditional trader importing Somalian bananas into Italy.

31 Consequently, if Camar does not obtain the additional licences sought in this application for interim measures, the distribution network which it has itself cre- ated in Italy will be broken up, since the quantities of bananas available to it will be quite inadequate to meet the costs of a structure designed to cope with a much greater commercial capacity and to satisfy the demand of the ripeners it has tradi- tionally supplied. The applicant has, in fact, already exhausted its financial

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resources in dealing with such a difficult situation and, while it is not in danger of having immediately to cease trading, it might be heading towards insolvency, if measures are not adopted which affect its situation.

32 The Italian Government confirms that the very survival of Camar, which essen- tially operates as an importer of bananas into Italy, is at risk in a situation such as this in which it is prevented from having access to alternative supplies to replace Somalian supplies. Accordingly, the interim measures requested are essential if serious and irreparable damage is to be avoided.

33 T h e C o m m i s s i o n disputes the data p u t forward b y the applicant to establish urgency (periculum in mora) in these proceedings.

38 According to the French Government, the applicant has provided only a few par- ticulars concerning the commercial policy it has pursued since the common organ- ization of the markets came into force, complaining of problems in supplying itself with Somalian bananas and in obtaining licences. In point of fact, the appli- cant's economic problems are explicable by the fact that the American company Dole has set up in Somalia and that some of the bananas grown there are imported into Italy by Comafrica, which forms part of the Dole group. Furthermore, con- tinues the French Government, at the time when the common organization of the market in bananas was established, Camar, as an importer of traditional ACP bananas, was entitled to a number of B licences calculated not only by reference to the quantities of bananas imported in 1991, the year after war broke out, during which Camar suffered a loss on its imports from Somalia, but also by reference to Somalian exports for the years 1989 to 1990. To issue additional licences, as requested in this application for interim measures, would be contrary to the inter- ests of the other traders and, above all, with the objectives pursued by the Com- munity legislature (see, on this subject, Case C-280/93 Germany v Council [1994] ECR I-4973), since it would be tantamount to giving Camar a competitive advan- tage to the detriment of the other traders. In the circumstances of this case, Camar

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would individually achieve the replacement of its right to import 'unused' tradi- tional ACP bananas (the 60 000 tonnes fixed for Somalia by Regulation N o 404/93) by the right to import third-country and non-traditional ACP bananas. Such a measure would be contrary to Regulation N o 404/93, which does not per- mit importation rights to be altered. Moreover, any increase in the volume of the tariff quota would entail repercussions on the price of bananas, irrespective of their origin.

for declaration of failure to act as it may think fit in order to prevent Camar from suffering irreparable damage'. That request for 'additional' licences or measures correcting the Commission's distribution of licences for 1997 is in essence based on Article 30 of Regulation N o 404/93.

42 That article, as already stated, confers on the Commission the power to take any transitional measures 'to assist the transfer from arrangements existing before the entry into force of this regulation (...), and in particular to overcome difficulties of a sensitive nature' caused by that transfer. According to settled case-law, those transitional measures are intended to deal with disturbances in the internal market in consequence of replacement of the various national measures by the common organization of the market and their purpose is to address difficulties encountered after establishment of the common organization of the market but originating in the state of national markets prior to the adoption of Regulation N o 404/93 (order of the Court of Justice in Case C-280/93 R Germany v Council, cited above, judg- ments in Case C-68/95 T. Port v Bundesanstalt für Landwirtschaft und Ehnährung, cited above, and Joined Cases C-9/95, C-23/95 and C-156/95 Belgium v Commission [1997] ECR I-645).

43 In particular, according to the Court of Justice, Article 30 of the regulation requires the Commission to lay down rules catering for cases of hardship where importers meet difficulties 'threatening their existence when an exceptionally low quota has been allocated to them (...) where those difficulties are inherent in the transition from the national arrangements existing before the entry into force of the regulation to the common organization of the market and are not caused by a lack of care on the part of the traders concerned' (Case C-68/95 T. Port, cited above, paragraph 43).

47 Failure to satisfy those requirements could have the effect of altering the entire system of banana imports into the Community, prejudice the rights of traders in the sector and thus upset the balance of interests upheld by the provisions of the common agricultural policy concerning the common organization of the markets in question.

48 During the written and oral parts of the procedure the applicant maintained that in this instance all the requirements laid down by Article 30 for the issue of

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'additional' licences had been satisfied. The outbreak of war in Somalia at the end of 1990 had prevented Camar from importing into Italy the same quantity of bananas which it normally imported. That reduction, which took place in the years immediately prior to the entry into force of Regulation N o 404/93, had an adverse effect on its right to a substantial number of licences for imports from third coun- tries and non-traditional ACP States. In consequence, while, by virtue of the Ital- ian legislation then in force, which permitted it to import from third countries, Camar was able to make good the losses suffered as a result of the war before the common organization of the market was established, once that organization had been established the applicant lost all chance of recovering its losses.

49 The Commission challenges all the evidence adduced by Camar in support of its application. In particular, it points out, on the one hand, that ever since the com- mon organization of the market was established, Camar has received A licences enabling it to import bananas from third countries within the framework of the tariff quota and, on the other, that as from 1993 the applicant could, like other undertakings in the same sector, import bananas from ACP States other than Somalia. The defendant adds that it is open to Camar, in fact, to import during the current marketing year the entire quantity of Somalian bananas provided for in the annex to Regulation 404/93 as the quota of 'traditional' imports of Somalian bananas.

52 Consequently, there do not appear to be factors requiring the adoption of meas- ures correcting the current allocation of import licences for the present year, such as issuing licences to Camar, as it has requested, or any other alternative measures.

53 In consequence, and without there being any need to examine the pleas in law and arguments put forward by the applicant in support of adoption of the measures sought, Camar's application for interim relief must be dismissed.

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On those grounds,

T H E PRESIDENT O F T H E COURT O F FIRST INSTANCE

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