C-73/97

FRANCE v COMAFRICA AND OTHERS

J U D G M E N T O F T H E C O U R T (Sixth Chamber) 21 January 1999 *

In Case C-73/97 P,

French Republic, represented initially by Catherine de Salins, Assistant Director in the Legal Affairs Directorate of the Ministry of Foreign Affairs, subsequently by Kareen Rispal-Bellanger, Assistant Director in the same directorate, and Frédéric Pascal, Administrative Attaché in the same directorate, acting as Agents, with an address for service in Luxembourg at the French Embassy, 8B Boulevard Joseph II,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 11 December 1996 in Case T-70/94 Comafrica and Dole Fresh Fruit Europe v Commission [1996] ECR II-1741, seeking to have that judgment partially set aside in so far as it rejected the plea of inadmissibility raised by the Commission,

represented by Bernard O'Connor, Solicitor, with an address for service in Lux- embourg at the Chambers of Arsène Kronshagen, 22 Rue Marie-Adelaide,

applicants at first instance,

Commission of the European Communities, represented by Xavier Lewis, 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, Kirchberg,

defendant at first instance,

United Kingdom of Great Britain and Northern Ireland,

intervener at first instance,

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Judgment

1 By application lodged at the Registry of the Court of Justice on 20 February 1997, the French Republic brought an appeal pursuant to the third paragraph of Article 49 of the EC Statute of the Court of Justice against the judgment given on 11 December 1996 in Case T-70/94 Comafrica and Dole Fresh Fruit Europe v Com- mission [1996] E C R II-1741 (hereinafter 'the contested judgment') in which the Court of First Instance rejected the plea of inadmissibility raised by the Commis- sion.

2 In the contested judgment, the Court of First Instance dismissed as unfounded the application for annulment of Commission Regulation (EC) N o 3190/93 of 19 November 1993 fixing the uniform reduction coefficient for determining the quanti- ties of bananas to be allocated to each operator in categories A and B in the context of the tariff quota 1994 (OJ 1993 L 285, p. 28) and the claim for compensation submitted by Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co. (hereinafter 'Comafrica and Dole').

3 As regards the factual background to the dispute and the Community legislation at issue, reference is made to paragraphs 1 to 21 of the contested judgment.

6 In that respect, the Court of First Instance considered:

'38 The fourth paragraph of Article 173 of the Treaty entitles individuals to contest a decision which, although adopted in the form of a regulation, is shown to be of direct and individual concern to them. As the Court of Justice and the Court of First Instance have consistently held, one of the main purposes of that provi- sion is to prevent the Community institutions, by mere choice of the form of a regulation, from depriving an individual of a right of action against a measure which is in reality a decision having a direct and distinct impact on his par- ticular situation. It is therefore clear that the choice of form cannot of itself determine the legislative character of a measure (see judgment of the Court of Justice in Joined Cases 789/79 and 790/79 Calpak and Società Emiliana Lavorazione Frutta v Commission [1980] ECR 1949, paragraph 7, and order of the Court of First Instance in Case T-476/93 FRSEA and FNSEA v Council [1993] E C R II-1187, paragraph 19).

39 The Court of Justice and the Court of First Instance have also held that, in order for economic operators to be regarded as being individually concerned by the measure they seek to have annulled, their legal position must be affected by reason of circumstances which differentiate them from all other persons and distinguish them individually in the same way as an addressee of a decision (see, for example, the judgment of the Court of Justice in Case C-131/92 Arnaud v Council [1993] E C R I-2573).

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41 The Court notes that in this case Regulation N o 3190/93 is of relevance only to those operators who had applied for and obtained reference quantities for imports of Category A or Category B bananas for the year 1994. It informs each operator concerned that the quantity of bananas it was entitled to import under the tariff quota for the year 1994 may be determined by applying the stated uniform reduction coefficient to its reference quantity. Inasmuch as the only legislative function of the regulation is to fix and publish this reduction coefficient figure, it has the immediate and direct effect of enabling each operator to ascertain his own precise entitlement by applying that coefficient to the ref- erence quantity already allocated to him. As such, it is properly construed as a collection of individual decisions addressed to each operator effectively informing him of the precise quantities which he will be entitled to import in 1994.

42 The Court also notes that the Commission has not contested the applicants' assertion that they are also directly concerned by Regulation N o 3190/93 because it does not allow Member States any margin of discretion in relation to the licence applications made.

43 In these circumstances, the action for annulment of Regulation N o 3190/93 must be declared admissible.'

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The appeal

— order Comafrica and Dole to pay the costs.

10 In support of its appeal, the French Government claims that the Court of First Instance failed to take account of the general scope and the legislative character of Regulation N o 3190/93, which produces legal effects vis-à-vis all Category A and B operators and of the fact that Comafrica and Dole failed to demonstrate the exist-

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enee of a particular factual situation characterising them more particularly than any other operator marketing bananas covered by the tariff quota.

1 3 As regards the request for a measure of inquiry, the Court considers that it must be rejected. It was made at a time when, in accordance with Article 59(2) of the Rules of Procedure, the oral procedure was closed. The Court has held (see, in particular, Case C-415/93 Union Royale Belge des Sociétés de Football Association v Bosman [1995] ECR I-4921, paragraph 53) that such a request can be accepted

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only if it relates to facts which may have a decisive influence and which the party concerned could not put forward before the close of the oral procedure.

1 4 In the present case, it is sufficient to note that Comafrica and Dole could have submitted their request before the close of the oral procedure. The matter of the operation of the licensing allocation procedure under Regulation N o 1442/93 was raised by them in their rejoinder lodged pursuant to Article 117 of the Rules of Procedure. Furthermore, by letter lodged at the Registry of the Court on 8 October 1997, they stated that the written procedure had enabled them sufficiently to defend their position and that they did not object to the Court dispensing with the oral part of the procedure in accordance with Article 120 of the Rules of Procedure.

15 As regards the request for the the oral procedure to be reopened, the Court, in accordance with Article 61 of its Rules of Procedure, considers that this is not necessary in the present case.

18 The detailed rules for the application of Title IV of Council Regulation (EEC) N o 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p . 1) were laid down in Regulation N o 1442/93.

19 As regards the issue of import licences to the various categories of operator, Regula- tion N o 1442/93 prescribes a procedure consisting of several stages.

20 First, pursuant to Article 4(1) of Regulation N o 1442/93, the competent authorities of the Member States are to draw up separate lists of operators in Categories A and B and the quantities which each operator has marketed in each of the three years prior to that preceding the year for which the tariff quota is opened, broken down according to economic activity as described in Article 3(1) of the regulation.

21 In that respect, Article 4(2) of Regulation N o 1442/93 provides that the operators concerned are to notify the competent authorities at the latest by 1 September 1993 as regards 1994, by 1 April each year thereafter of the overall quantities of bananas marketed in each of the years referred to in paragraph 1 of that provision, breaking them down clearly according to the origin of the bananas and according to eco- nomic activity as described in Article 3(1) of the regulation.

22 Next, pursuant to Article 5 of Regulation N o 1442/93, at the latest by 1 October 1993 as regards 1994 and by 1 July each year thereafter, the competent authorities

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27 In the last stage, pursuant to the first paragraph of Article 6 of Regulation N o 1442/93, the Commission is to fix, where appropriate, a single reduction coefficient for each category of operators to be applied to operators' reference quantities to determine the quantity to be allocated to each. According to the second paragraph of that article, the Member States are to determine the quantities for each operator in Categories A and/or B registered with them and to notify the latter thereof indi- vidually at the latest by 1 November 1993 as regards 1994 and by 1 August each year thereafter.

28 As regards the reduction coefficient fixed by Regulation N o 3190/93, the Commis- sion stated before the Court of First Instance that that coefficient was applied to reference quantities which had been corrected by its services or at their instigation (paragraph 64 of the contested judgment).

29 It is apparent from the fifth and sixth recitals in the preamble to Regulation N o 3190/93 that the notifications made by the Member States pursuant to Article 5(3) of Regulation N o 1442/93 reveal that the same quantities in respect of the same activity were counted twice for different operators in several Member States and that the reduction coefficient was determined on the basis of the notifications from the Member States after the quantities counted twice had been estimated by the Commission and the figures corrected accordingly.

30 It follows that the figures notified by the operators to the competent authorities may be altered several times in the course of the procedure before the reduction coefficient is fixed, without the alterations made by the competent authorities or the Commission being brought to the attention of the operators concerned.

35 When adopting Regulation N o 2806/87, the Commission availed itself of the pos- sibility provided for in Article 15(6)(d) of Regulation (EEC) N o 2377/80 of 4 Sep- tember 1980 on special detailed rules for the application of the system of import and export licences in the beef and veal sector (OJ 1980 L 241, p. 5), as inserted by Commission Regulation (EEC) N o 3578/82 of 23 December 1982 (OJ 1982 L 373, p. 59), according to which the Commission is to decide to what extent applications for licences can be accepted and to reduce the amounts requested by a fixed per- centage if the quantities for which licences have been requested exceed the quanti- ties available.

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36 It follows, as the Advocate General points out at point 53 of his Opinion, that the role of the competent authorities of the Member States was limited to the issue of import licences by carrying out, on the basis of the Commission regulation, a simple multiplication which each operator was capable of performing himself.

37 By contrast, it is clear from paragraphs 20 to 31 above that the operators did not obtain a reference quantity before the adoption of Regulation N o 3190/93, nor were they able to ascertain the definitive quantity they would be entitled to import in 1994 by carrying out a simple multiplication of a quantity known to them by the reduction coefficient determined by the regulation.

38 The Court of First Instance was therefore also wrong to conclude, at paragraph 41 of the contested judgment, on the basis of the judgment in Weddel v Commission, that Regulation N o 3190/93, properly construed, was a collection of individual decisions addressed to each operator effectively informing him of the precise quan- tities which he would be entitled to import in 1994.

42 Under the second sentence of the first paragraph of Article 54 of the E C Statute of the Court of Justice, if the decision of the Court of First Instance is quashed, the Court of Justice may give final judgment in the matter where the state of the pro- ceedings so permits. The Court considers that to be the case here.

43 It is sufficient to hold in that regard that the application for annulment of Regula- tion N o 3190/93 submitted by Comafrica and Dole must be dismissed as inadmis- sible.

Costs

44 According to the fourth paragraph of Article 122 of the Rules of Procedure of the Court of Justice, when an appeal brought by a Member State or an institution which did not intervene in the proceedings before the Court of First Instance is well founded, the Court of Justice may order that the parties share the costs or that the successful appellant pay the costs which the appeal has caused an unsuccessful party to incur. Each party must therefore be ordered to bear its own costs.

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Kapteyn Mancini Murray

Ragnemalm Iannou

Delivered in open court in Luxembourg on 21 January 1999.

R. Grass P. J. G. Kapteyn

Registrar President of the Sixth Chamber

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