C-73/97

FRANCE v COMAFRICA AND OTHERS

OPINION OF ADVOCATE GENERAL MISCHO delivered on 25 June 1998 *

1. The French Government, supported by the for annulment admissible, and thus dismissed Commission, has lodged an appeal for the the Commission's plea of inadmissibility. partial annulment of the judgment of the Court of First Instance of 11 December 1996 in Case T-70/94 Comafrica and Dole Fresh Fruit Europe v Commission, 1 in so far as that judgment dismissed the Commission's plea of inadmissibility. 4. The French Government considers that, by holding that the applicant companies were directly and individually concerned by Article 1 of the disputed regulation, the Court of First Instance infringed the fourth paragraph of Article 173 of the Treaty, as interpreted by the case-law of the Court of Justice. 2. In that judgment, the Court of First Instance held the applicant companies' claims for the annulment of Commission Regulation (EC) N o 3190/93 of 19 November 1993 fixing the uniform reduction coefficient for deter- The novelty of this appeal mining the quantities of bananas to be allo- cated to each operator in categories A and B in the context of the tariff quota 1994 2 to be unfounded, and dismissed the applicants' claim for compensation under Article 178 and the second paragraph of Article 215 of the Treaty. 5. Whilst this is not the first time that the Court has had to consider provisions con- cerning the common organisation of the mar- kets in the banana sector, these proceedings are unusual.

3. Before arriving at that decision on the substance of the action, the Court of First Instance had declared the applicants' claims 6. This appeal has been brought by the French Republic, which did not intervene at first instance. This is, so far as I am aware, the first * Original language: French. 1 — [1996] ECR II-1741. application of the third paragraph of Article 2 — OJ 1993 L 285, p. 28. 49 of the E C Statute of the Court of Justice.

8. Moreover, under the first paragraph of the same article, an appeal may be brought before the Court of Justice against decisions of the Court of First Instance 'disposing of a pro- cedural issue concerning a plea of lack of competence or inadmissibility'. 12. Such reasoning would be no more than superficial. Apart from the wording of the operative part of the contested judgment, the stages which preceded it also need to be taken into consideration. The decision of the Court of First Instance to dismiss the substance of 9. Moreover, Article 113 of the Rules of Pro- the action was preceded by a section headed cedure of the Court of Justice provides that 'Admissibility', at the end of which the Court the appeal must seek the setting aside, in expressly upheld the admissibility of the whole or in part, of the contested decision action, which the Commission had formally and the same form of order, in whole or in challenged by raising an objection to that part, as that sought at first instance, and shall effect. By so doing, the Court took a decision not seek a different form of order. disposing of a procedural issue concerning a plea of inadmissibility within the meaning of the first paragraph of Article 49 of the EC Statute of the Court of Justice.

10. That is the case here, since the French Government's appeal seeks both the partial setting aside of the judgment of the Court of First Instance and the form of order sought by the Commission at first instance con- cerning the inadmissibility of the action. 13. The fact that the Court of First Instance then logically moved on to examine the substance of the case and that there is no separate judgment concerning the plea of inad- missibility alone (as would have been the case if the plea had been upheld) should not hide 11. It should be noted that the appeal does the fact that, in reality, the Court took two not seek to alter the final solution adopted by successive decisions. An appeal must be pos- the Court of First Instance, namely the dis- sible against each of them.

'1 Prior to 1993 the marketing of bananas within the Community took place under a variety of national arrangements. There were three main sources of supply: bananas produced within the Commu- nity itself, bananas produced in certain of the countries with which the Com- munity had concluded the Lomé Con- 15. Finally, Article 51 of the E C Statute of vention (hereinafter "ACP bananas"), the Court of Justice shows that the appeal and bananas produced in other countries must concern a point of law. Whether the (hereinafter "third country bananas"). applicants were directly and individually con- cerned within the meaning of the fourth para- graph of Article 173 of the Treaty is undoubt- edly a point of law, as, moreover, the Court of Justice has already held. 3 2 A common organisation of this market sector was introduced by Council Regu- lation (EEC) N o 404/93 of 13 February 1993 on the common organisation of the market in bananas 4 (hereinafter "Regu- lation N o 404/93") which had the effect of introducing as from 1 July 1993 a common import system to replace the various national systems which had hith- erto operated. Regulation N o 404/93 was last amended by Council Regulation (EC) N o 3290/94 of 22 December 1994 on the 16. The admissibility of the appeal is there- adjustments and transitional arrange- fore not in doubt. ments required in the agriculture sector

3 — Case C-209/94 P Buraiul and Others v Council [1996] ECR I-615. 4 — OJ 1993 L 47, p. 1.

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in order to implement the agreements rules for the implementation of Title IV concluded during the Uruguay Round of Regulation N o 404/93 were estab- of multilateral trade negotiations. 5 It is lished by Commission Regulation (EEC) the version of 13 February 1993 which is N o 1442/93 of 10 June 1993 laying down relevant for the present judgment. detailed rules for the application of the arrangements for importing bananas into the Community 6 (hereinafter "Regula- tion N o 1442/93").

5 — OJ 1994 L 349, p. 105. 6 — OJ 1993 L 142, p. 6.

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accordance with Article 19 to be allo- 12 Article 5 provides that by 1 October cated to three categories of operators as 1993 (for the purposes of the year 1994) follows: and by 1 July for each following year, the competent authorities of the Member States are required to establish for each Category A and Category B operator registered with them the average quanti- ties marketed during the three years prior to the year preceding that for which the — 66.5% to operators who had mar- quota was opened, broken down by ref- keted third country and/or non- erence to the different types of economic traditional A C P bananas; activity described in the definition of "operators" in Article 3 of Regulation N o 1442/93. The average marketing quantity thus supplied by the competent authorities for an operator is termed the operator's "reference quantity". — 30% to operators who had marketed Community and/or traditional A C P bananas;

13 Article 3(1) of Regulation N o 1442/93 deems economic agents to be "opera- tors" in Category A or Category B where they engage in one or more of the fol- — 3.5% to operators established in the lowing activities on their own account: Community who started marketing bananas other than Community and/ or traditional A C P bananas from 1992.

(a) the purchase of green third country and/or ACP bananas from the pro- ducers, or, where applicable, the pro- duction, consignment and sale of such products in the Community (herein- 10 Amongst the detailed rules laid down in after "class (a) activities"); Regulation N o 1442/93 for implementa- tion of the regime established by Regu- lation N o 404/93, as described above, are the following provisions.

18 ... O n 19 November 1993 the Commis- sion adopted Regulation ... N o 3190/93 ... Article 1 of Regulation N o 3190/93 14 Article 5(2) fixes weighting coefficients provides as follows: which are applied to the quantities mar- keted and which differ according to the activities engaged in. According to the third recital in the preamble of Regula- tion N o 1442/93, these coefficients are "In the context of the tariff quota laid intended to take account of the scale of down in Articles 18 and 19 of Regula- business concerned and the commercial tion N o 404/93, the quantity allocated risks incurred and to correct the nega- to each operator of categories A and B tive effects of counting the same quanti- for the period 1 January to 31 December ties of products more than once at various 1994 is determined by applying the fol- stages of marketing. lowing reduction coefficients to the oper-

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ator's reference quantity, determined in As the Court of Justice and the Court of accordance with Article 5 of Regulation First Instance have consistently held, one (EEC) N o 1442/93: of the main purposes of that provision is to prevent the Community institutions, by mere choice of the form of a regula- tion, from depriving an individual of a right of action against a measure which — for each category A operator: 0, is in reality a decision having a direct 506617 and distinct impact on his particular situ- ation. It is therefore clear that the choice of form cannot of itself determine the legislative character of a measure. 7

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applied for import licences at the time of applying that coefficient to the reference its adoption. 9 In finding that the opera- quantity already allocated to him. As tors in question were individually con- such, it is properly construed as a col- cerned, the Court took account of the lection of individual decisions addressed fact that, in determining the extent to to each operator effectively informing which the applications were to be satis- him of the precise quantities which he fied, on the basis of the total quantities will be entitled to import in 1994. applied for and in circumstances in which no new applications could be added, the Commission had, in fact, decided on the treatment to be accorded to each appli- cation. Consequently, the Court of Jus- tice considered that the regulation in question was to be regarded as a collec- 42 The Court also notes that the Commis- tion of individual decisions and not as a sion has not contested the applicants' measure of general application within the assertion that they are also directly con- meaning of Article 189 of the Treaty. cerned by Regulation N o 3190/93 because it does not allow Member States any margin of discretion in relation to the licence applications made.

24. The Court of Justice concluded that 'even if the Commission was aware only of the quantities applied for ..., it thereby decided on the treatment to be accorded to each application lodged' and that, therefore, this was a case of 'a bundle of individual decisions ... in the guise of a regulation, each of those 21. The case of Weddel v Commission con- decisions affecting the legal position of each cerned the opening of a tariff quota of 4 617 applicant'. tonnes. The applicant had submitted an appli- cation for import licences totalling 320 000 tonnes. It challenged the validity of a provi- sion of the regulation in question, to the effect that any application exceeding 4 617 tonnes would be automatically regarded as an appli- cation for that amount. The purpose was to 25. In paragraph 41 of the judgment under prevent operators from cornering the greater appeal in this case, the Court of First Instance part of the quota simply by lodging highly stated: exaggerated applications.

'... in this case Regulation N o 3190/93 is of relevance only to those operators who had applied for and obtained 1 1reference quanti- ties for imports of Category A or Category B bananas for the year 1994. It informs each 22. The contested regulation further pro- operator concerned that the quantity of vided that each application would be met only bananas it was entitled to import under the up to 0.2425% of the quantity requested. 10 tariff quota for the year 1994 may be deter- mined by applying the stated uniform reduc--

10 — Commission Regulation (EEC) No 2806/87 of 18 September 1987 on the issue of import licences for high-quality fresh, chilled or frozen beef and veal (OJ 1987 L 268, p. 59). 11 — Emphasis added.

26. Like the Commission, however, I am not convinced that there is a sufficient analogy 28. Pursuant to Article 4 of Regulation N o between the cases of Weddel and Comafrica 1442/93, the competent authorities of the and Dole. In particular, I am not convinced Member States draw up separate lists of opera- that under the system in question here: tors in Categories A and B and the quantities which each operator has marketed in each of the three preceding years. For that purpose, operators notify the competent authorities of the overall quantities of bananas, breaking them down — an operator 'obtained' a reference quan- tity or that such a quantity was 'allocated' to him before the adoption of Regulation N o 3190/93; — according to the origin of the bananas (bananas originating in third countries and non-traditional A C P quantities, A C P bananas, bananas produced in the Com- munity), — it was possible for each operator to deter- mine the final quantity which he would

12 — Emphasis added. — according to each of the economic activi- 13 — Emphasis added. ties defined in Article 3(1) of Regulation 14 — Emphasis added. N o 1442/93, concerning the detailed rules

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for the application of the quota arrange- 32. Under Article 8 of Regulation N o 1442/93, ments (that is to say, purchase of green '[t]he competent authorities shall conduct all bananas, supply and release for free circu- necessary checks to verify the validity of lation as owner, ripening as owner). applications and supporting documents sub- mitted by operators. To that end they may in particular take account of expert opinions and reports drawn up by internal and indepen- dent auditors'.

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01479 of 15 February 1996] which reads as 39. It is thus only at that stage that the follows: operator actually learns what annual quantity has been allocated to him.

'It must also be recalled that the Commission 40. It became apparent, moreover, in the received only the aggregate provisional refer- course of the proceedings before the Court of ence quantities for the operators in each First Instance that the Commission did not Member State. It did not receive that amount make a purely mathematical calculation but broken down operator by operator.' felt it needed to question the total amounts notified by the competent authorities of the Member States. It thus required them to cor- rect for a second time some of the reference quantities which they had already checked, and in some cases rectified, at the previous stage, before notifying the total amounts to the Commission. 36. The next phase is under the control of the Commission (Article 6 of Regulation N o 1442/93), and consists in the Commission making a comparison between the volume of the annual tariff quota and the total amount of operators' reference quantities notified to it by the various Member States. 41. It may be seen from paragraph 65 of the judgment of the Court of First Instance which is the subject of the present appeal that the Commission acknowledged 'that reference quantities originally submitted by the Member States led it to believe that there had been cases of double counting and of overlapping in the figures concerning operators carrying 37. If the total applications exceed the volume on different classes of activity, and that it was of the tariff quota, the Commission is to fix a obliged for that reason to correct the figures 'single reduction coefficient for each category before applying [by which doubtless "calcu- of operators to be applied to operators' refer- lating" is meant] the reduction coefficient'. ence quantities to determine the quantity to be allocated to each' (Article 6(1)).

45. Finally, it should be noted that Regula- tion N o 3190/93 does not itself elaborate on its reference to corrections for 'quantities 48. Moreover, as the Commission has rightly counted twice' estimated by the Commission emphasised, the regulation in question 'con- (penultimate recital in the preamble to the cerns only the future or nascent entitlement regulation). to licences for which applications are to be made during the first week of the last month of each quarter in accordance with Article 9(2) of Regulation N o 1442/93'.

46. An individual operator was therefore not able to determine by himself:

49. In other words, import licences are issued only on a quarterly basis. For that purpose, the first step is the fixing of 'indicative quan- tities ... using data and forecasts relating to — either on the basis of the figures notified the Community market, on the basis of the by him to the competent national authority, forecast supply balance for production and

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consumption in the Community and of to the immediate issue of import licences by imports and exports'. carrying out, on the basis of the Commission regulation, a simple multiplication which each operator was capable of performing himself.

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costs. The disputed regulation in Weddel v Weddel was thus individually distinguished in Commission thus retrospectively affected the relation to other applicants for licences. rights and obligations of such operators.

60. I cannot help noticing, however, that in its judgment in Weddel v Commission this 57. I share the Commission's view that the Court did not base its argument on that aspect situation in this case is completely different, (which it merely noted as being among the since Regulation N o 3190/93 concerns only positions adopted by the applicant) but merely the future or nascent entitlement to licences referred to the weighting coefficient applying for which applications are yet to be made. to the applications as a whole.

61. Whatever the case may be on that latter 58. The Commission also draws attention to point, I conclude on the basis of the above the fact that the licences which operators are arguments as a whole that the Court of First able to obtain are assignable. In its submis- Instance was wrong in its analysis of Regula- sion, therefore, the import licence is merely a tion N o 3190/93 and Regulation N o 1442/93 tradable commodity. However, unchallenged inasmuch as it thought that the situation of statements in Weddel v Commission show that Comafrica and Dole could be entirely assimi- the licences at issue in that case were also lated to that of Weddel and concluded from assignable, which did not prevent this Court this that the action of Comafrica and Dole from holding that action admissible. was admissible because those companies were individually concerned.

67. It is necessary to discount from the outset the case of Arposol v Council, in which the 64. Comafrica and Dole lay much emphasis Court's judgment merely found that the appli- on the fact that, in their submission, Regula- cant company was not directly concerned and tion N o 3190/93 applies only to a closed cat- did not examine whether it was individually egory of operators. I believe their argument concerned. on that point must be accepted, since that regulation does in fact concern applications that were made in the past, at a specific time and in accordance with specific procedures, and to which no further application may be added. 68. The other cases cited also concern situa- tions which were different from that in the present case. Thus, in CAM v Commission, the action was not declared admissible solely on the ground that the contested measure 65. The closed category is also a restricted applied to a closed category of addressees, one, since the operators in question are defined but primarily because the latter had taken, or by the fact that they are the only ones that could be deemed to have taken, certain com- comply with a certain number of procedural mercial measures on the strength of legisla- and substantive conditions; they must have tion which was then suddenly amended. imported certain categories of bananas during the three years preceding the adoption of the regulation and have sent those figures to the competent authority of their Member State, within the prescribed time-limits and in accor- dance with the prescribed procedures. That much follows from the legislative context 69. In Société pour l'Exportation des Sucres v described above. Commusion, unlike the present case, the regu-

71. It is moreover clear that, by reason of their status as designated tenderers, the posi- tion of the applicants in those cases showed a much closer link to the contested measure 74. That is precisely the case here as regards than does the situation of the applicants at Regulation N o 3190/93, which, as the French first instance in this case. As has already been Government has pointed out, displays all the seen, their connection with the contested mea- features of a legislative measure. It has a gen- sure is limited to the fact that they sent the eral purpose, namely the implementation for figures concerning their previous imports to a given period of one of the aspects of the the competent national authority with the system of quotas applicable to the operators intention of subsequently applying for quar- defined by' Regulation N o 1442/93, cited terly import licences. above. That regulation requires the Commis- sion to take the measures necessary to ensure the correct functioning of the common organi- sation of the market by globally adjusting the quantities capable of being applied for on the basis of past imports to the quantities avail- able pursuant to the basic regulation. The 72. The case-law in question thus concerned Court's judgment in Case C-478/93 Nether- situations which are far from identical with the present case. What does, on the other hand, appear to me to be relevant in deter- 17 — See, for example. Case C-264/91 Abertal and Others v mining whether the admissibility of the action Council [1993] ECR I-3265.

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79. I believe I have demonstrated above that that is not the case here. The measure taken applies uniformly to the whole category of operators falling within the scope of Regula- tion N o 3190/93. The reduction coefficient is 76. By virtue of its very objective, the con- tested regulation could apply only to category A and category B operators, defined by Regu- lation N o 1442/93, who wished to import 19 — Sec, for example, the judgment in Case C-309/89 Codorniu v Council [1994] ECR I-1853, where the applicant was indi- bananas under the 1994 quota and had there- vidually concerned because the contested legislative measure affected his specific rights, or the judgment in Case C-358/89 fore taken the necessary preliminary steps Extranet Industrie v Council [1991] ECR I-2501, in which, in the context of an anti-dumping proceeding, the applicant prescribed by that regulation. was individually concerned by reason of his factual situa- tion as the principal importer of the product, its final user and the main competitor of the Community producer in relation to the processed product. 20 — See, in particular, the judgment in Case 240/84 NTN Toyo 18 — [1995] ECR I-3081. Bearing Company and Others v Council [1987] ECR 1809.

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Conclusions

84. I therefore p r o p o s e t h a t t h e C o u r t s h o u l d allow t h e appeal b y t h e F r e n c h R e p u b l i c and set aside the j u d g m e n t of the C o u r t of First Instance of 11 D e c e m b e r 1996 in C a s e T-70/94 in so far as it declared admissible t h e action for a n n u l m e n t b r o u g h t b y Comafrica S p A and D o l e Fresh F r u i t E u r o p e L t d and C o . against C o m - mission Regulation ( E C ) N o 3190/93 of 19 N o v e m b e r 1993 fixing the u n i f o r m r e d u c t i o n coefficient for determining the quantities of bananas t o be allocated t o each o p e r a t o r in categories A and B in the context of the tariff q u o t a 1994.

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85. I further propose, pursuant to Article 54 of the EC Statute of the Court of Jus- tice, that the Court should give final judgment in the dispute by dismissing as inad- missible the action brought by Comafrica SpA and Dole Fresh Fruit Europe Ltd and Co.

86. O n the matter of costs, I propose that each party should be ordered to bear its own costs, pursuant to the final paragraph of Article 122 of the Rules of Procedure of the Court of Justice.