T-191/96

CAS SUCCHI DI FRUTTA v COMMISSION

O R D E R O F T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE 26 February 1997 *

In Case T-191/96 R,

CAS Succhi di Frutta SpA, a company incorporated under Italian law, established in Verona (Italy), represented by Alberto Miele, of the Padua Bar, Antonio Tiz- zano and Gian Michele Roberti, of the Naples Bar, and Carlo Scarpa, of the Venice Bar, Cabinet Tizzano, 36 Place du Grand Sablon, Brussels,

applicant,

v

T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

Legal framework, facts and procedure

1 By Regulation (EC) N o 228/96 of 7 February 1996 on the supply of fruit juice and fruit jams intended for the people of Armenia and Azerbaijan (OJ 1996 L 30, p. 18, hereinafter 'Regulation N o 228/96'), the Commission opened a tendering pro- cedure for the supply of 1 000 tonnes of fruit juice, 1 000 tonnes of concentrated fruit juice and 1 000 tonnes of fruit jams. Article 1 of the regulation provided that the tendering procedure was initiated in accordance with the provisions of Com- mission Regulation (EC) N o 2009/95 of 18 August 1995 laying down detailed rules for the free supply of agricultural products held in intervention stocks to Georgia, Armenia, Azerbaijan, Kyrgyzstan and Tajikistan pursuant to Council Regulation (EC) N o 1975/95 (OJ 1995 L 196, p. 4), and in particular Article 2(2) thereof, which provides that 'the invitation to tender may relate to the quantity of

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5 CAS Succhi di Frutta SpA (hereinafter 'CAS') had participated in the tenders for lots 1 and 2. Its offers were not accepted, since it proposed to withdraw, in pay- ment for the supply of its products, a quantity of apples much higher than the quantities proposed by the two successful tenderers in their offers in respect of each of those two lots.

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6 In its offers, Trento Frutta had stated that it was prepared to take peaches instead of apples should there be a shortage of apples (annex 6 to the Commission's obser- vations). O n 6 March 1996 the Commission wrote to AIMA, the Italian interven- tion agency, informing it that lots 1, 3, 4, 5 and 6 had been awarded to Trento Frutta. The Commission stated that, depending on the lot in question, Trento Frutta would receive in payment a given quantity of either (a) apples or, in the alternative, peaches; or (b) oranges or, in the alternative, apples or peaches (annex 8 to the Commission's observations).

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tonne of oranges. Those new coefficients applied only to products which, on 6 September 1996, had not yet been withdrawn by the successful tenderers in payment for supplies.

9 According to the Commission's observations, owing to the small quantities of fruit available from the intervention agencies, on 29 January 1997, or almost one year after having discharged its supply obligation, Trento Frutta had received only 2 5 % of the quantity of fruit indicated in its offers for the five lots awarded to it. It is apparent from the documents before the Court that of the 22 000 tonnes of fruit already withdrawn by Trento Frutta, approximately 16 500 tonnes were peaches (see annex 10 to the Commission's observations, indicating the quantities of fruit already handed over to Trento Frutta by 30 January 1997).

10 By application lodged at the Registry of the Court of First Instance on 25 Novem- ber 1996, CAS sought the annulment of the decision of 6 September 1996.

1 1 By separate document lodged at the Registry of the Court of First Instance on 16 January 1997, the applicant also applied, pursuant to Article 185 of the EC Treaty, for suspension of the operation of the decision. The Commission submitted its written observations by document lodged at the Registry of the Court of First Instance on 29 January 1997. Oral argument relating to the application for interim measures was heard on 6 February 1997.

The admissibility of the application for interim measures

Arguments of the parties

1 4 The Commission maintains that the application for interim measures is inadmis- sible since, first, the action for annulment in the main proceedings is manifestly inadmissible and, secondly, the applicant has no interest in having the operation of the contested decision suspended. In the first place, the main action is manifestly inadmissible because the applicant is not directly and individually concerned by that decision, within the meaning of the fourth paragraph of Article 173 of the Treaty. The decision is independent of the notice of invitation to tender and was adopted after the contract had been awarded. It is therefore of concern only to the successful tenderers and has nothing to do with the actual tendering procedure. The applicant's position is therefore the same as that of any operator in the sector concerned, other than the successful tenderers, irrespective of whether or not it submitted a tender. Furthermore, the main action is also manifestly inadmissible because the applicant has no interest whatsoever in bringing an action against the contested decision.

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17 At the hearing the applicant also refuted the Commission's allegations concerning its lack of interest in having the contested decision annulled or suspended. The applicant takes the view that the decision replaced the decision of 14 June 1996. The annulment of the contested decision would not, therefore, have the effect of reviving the earlier decision which it had repealed (see Case 4/73 Nold v Commis- sion [1974] ECR 491, paragraph 2). N o r would suspension of the operation of the decision temporarily revive the decision of 14 June 1996: it would lead to the

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application during the main proceedings of the rules of payment specified in the tender notice, so that the Commission would only be able to make apples or oranges available to Trento Frutta, depending on the lots considered, pending the decision of the Court on the main application.

Findings of the President

18 As regards the admissibility of the main action, it should be observed that, accord- ing to settled case-law, that question must not as a matter of principle be examined in a procedure for interim measures. It must be reserved for the examination of the main application, unless it is apparent at first sight that the latter is manifestly inadmissible, so as not to prejudge the Court's decision on the substance of the case (see, most recently, the order of the President of the Court of First Instance in Case T-155/96 R City of Mainz v Commission [1996] ECR 11-1655, paragraph 8).

seeks essentially to have payment to Trento Frutta in the form of peaches stopped during the main proceedings. In the context of that application, and without there being any need at this stage of examining it to state what consequences the mere suspension of the contested decision would have for the rules defining the prod- ucts which Trento Frutta may obtain in payment for its supplies, it is sufficient to point out that the President of the Court of First Instance hearing an application for interim measures is in any event empowered to adopt any appropriate interim measure in order to grant the application in substance and, where appropriate, to remove the risk of serious and irreparable harm alleged by the applicant, after con- sidering the arguments put forward by each of the parties regarding the various conditions to which the adoption of that measure is subject. That power is limited only by the need to ensure that in the particular circumstances of the case any interim measure granted does not produce irreversible effects and thereby prejudge the decision on the main application.

21 It follows that the Commission's argument that the applicant has no interest in seeking suspension of the operation of the contested decision on the ground that its suspension would necessarily lead to the provisional application of the decision of 14 June 1996, which was more favourable to the successful tenderers than the contested decision, cannot be upheld.

22 For all those reasons, the application for interim measures must be declared admis- sible.

25 The decision would severely distort competition in the industrial fruit-processing market and cause the applicant to suffer enormous economic loss. The applicant would be forced to sell its products, whether peach puree or concentrated peach juice, at a price well below its production costs in order to remain competitive with the very low prices which Trento Frutta would be able to charge by virtue of the effects of the contested decision. The applicant evaluates the damage thus sus- tained at approximately LIT 2.3 billion per annum. Furthermore, it would also sustain a loss of profits in the order of LIT 2 to 2.5 billion as a result of that decision. The ratio of, for example, the selling price of peach puree to the cost price of peaches fell from 2.14: 1 in 1994 to 2.09: 1 in 1995 and 1.67: 1 in 1996. Consequently, the profitability of the applicant's business is no longer guaranteed by market prices for sales in the 1996 marketing year owing to the abnormal pres- sure brought to bear on those prices by Trento Frutta as a result of being awarded, in payment for the supply of the products referred to in the notice of tender, approximately 65 000 tonnes of peaches, which is between 65% and 70% of the average quantity of peaches processed by the Italian industry (whereas 65 000 tonnes of apples is only 30% of the average quantity of apples processed by that industry).

26 Furthermore, the applicant could lose its share in markets other than the markets in the products in question, namely peach juices. There is a strong incentive for its traditional customers, which it supplies with a number of products, to purchase from competitors not only less expensive peach juices but also other products, eventually putting the applicant's very survival in jeopardy. Such damage would clearly be irreparable. At the very most, it might lead to financial compensation,

29 The Commission disputes the applicant's allegations regarding the risk of damage. The applicant has failed to adduce any evidence that the low prices charged by Trento Frutta are a consequence of the contested decision and cause the applicant serious damage by forcing it to sell at below cost price and causing it to lose market share. Furthermore, and in any event, the alleged damage is purely finan- cial. In that regard, the applicant, which on its own evidence is capable of selling

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20 500 tonnes of peach puree per annum, has failed to adduce any evidence what- soever that the damage referred to could not be made good in full should the con- tested decision be annulled.

30 Furthermore, the Commission stated at the hearing that intervention stocks of peaches, as well as of apples and oranges or nectarines and apricots, were currently exhausted and that the production and withdrawal of fruit during the next with- drawal season could scarcely be foreseen. Consequently, neither the applicant nor the Commission is in a position to foresee the quantities of peaches, apples or oranges which Trento Frutta will obtain in payment. The damage alleged by the applicant is therefore purely hypothetical and cannot be quantified at present.

Findings of the President

of peaches following the adoption of the contested decision. However, the appli- cant has failed to adduce any evidence to support its claims. In particular, neither the information provided by the applicant nor the evidence before the Court establishes a direct link between the low prices charged by Trento Frutta, on which the applicant relies and which allegedly bring abnormal pressure to bear on market prices, and the possibility that pursuant to the contested decision Trento Frutta may obtain payment in peaches rather than apples or oranges. The applicant merely states that Trento Frutta's prices are lower than the applicant's production costs. In that regard, it observes, without providing further particulars, that in the case of peach puree 'Trento Frutta's selling price — as revealed by market surveys — is approximately LIT 517 (and probably less) per kilo'. In the case of concen- trated peach juice the selling price does not exceed LIT 4 000 per kilo. The appli- cant fails to provide any information regarding, in particular, the places where, the dates on which or, where appropriate, the intervals at which the surveys were car- ried out, in order to establish their reliability. Furthermore, and in any event, the mere fact that, according to the market surveys referred to by the applicant, Trento Frutta was in a position to sell certain products at a price lower than the appli- cant's production costs does not necessarily result, in the absence of any support- ing information, from the fact that Trento Frutta obtained a certain quantity of peaches in payment, according to the coefficient of equivalence determined in the decision of 16 June 1996 and then amended by the contested decision. There might be an alternative explanation, such as, for example, a difference between the pro- duction costs of the two undertakings.

34 In that context, since it has not been established that Trento Frutta's allegedly low prices, on which the applicant relies for the purpose of evaluating the alleged dam- age, are linked to the contested decision and since, in any event, there is no guar- antee that, pursuant to the contested decision, Trento Frutta will obtain by way of payment a large quantity of peaches withdrawn during the 1996/97 withdrawal season, the annual losses of approximately LIT 2.3 billion and the loss of profits of approximately LIT 2 to 2.5 billion which the applicant claims to have sustained as a result of being forced to reduce its own prices in order to remain competitive with Trento Frutta following the operation of that decision are also purely hypo- thetical and unsupported by any solid or definite basis.

35 Furthermore, and in any event, in so far as the damage alleged by the applicant consists in losses and loss of profits, it is financial loss. It can therefore be

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adequately remedied by damages should the contested decision be annulled and, accordingly, cannot be regarded as irreversible.

36 The risk of damage which, according to the applicant, consists in the loss of mar- ket share in the peach juice and puree sector — and indeed in the market in other products, in so far as the applicant provides its traditional customers with a num- ber of products — rests on mere contentions of a purely theoretical or general type on the part of the applicant, which has failed to provide any concrete information or evidence to substantiate its argument. That is also the case where the applicant merely states, without providing further particulars, that the implementation of the contested decision will eventually jeopardize its very survival.

hereby orders:

1. The application for interim measures is dismissed.

2. The costs are reserved.

Luxembourg, 26 February 1997.

H. Jung A. Saggio

Registrar President