T-6/97

ORDER OF 3.3.1997 — CASE T-6/97 R

O R D E R O F T H E PRESIDENT O F T H E COURT O F FIRST INSTANCE 3 March 1997 *

In Case T-6/97 R,

Comafrica SpA, a company incorporated under Italian law, established in Genoa, Italy, and

Dole Fresh Fruit Europe Ltd & Co., a company incorporated under German law, established in Hamburg, Germany,

represented by Bernard O'Connor, Solicitor, and Bonifacio Garcia Porras, of the Salamanca Bar, with an address for service in Luxembourg at the Chambers of Arsene Kronshagen, 22 Avenue Marie-Adélaïde,

COMAFRICA AND DOLE FRESH FRUIT EUROPE v COMMISSION

APPLICATION under Articles 185 and 186 of the EC Treaty for (i) an order sus- pending operation of Commission Regulation (EC) N o 2035/96 of 24 October 1996 fixing the single reduction coefficient for the determination of the provisional quantity of bananas to be allocated to each operator in Categories A and B from the tariff quota for 1997 (OJ 1996 L 272, p. 6) in so far as that regulation affects the applicants or, alternatively, erga omnes, (ii) an order that the correct number of licences be issued to the applicants in accordance with their rights under Commu- nity law and (iii) any additional orders which the Court considers necessary for the purposes of granting interim relief to the applicants,

THE PRESIDENT O F THE COURT O F FIRST INSTANCE O F T H E EUROPEAN COMMUNITIES

makes the following

Order

Legal background

4 The first subparagraph of Article 18(1) of Regulation N o 404/93 provides for the opening of a tariff quota of 2 100 000 tonnes (net weight) for 1994, and of 2 200 000 tonnes (net weight) for the following years, for imports of third-country bananas and non-traditional ACP bananas. Within the framework of the tariff quota, imports of third-country bananas are subject to a levy of ECU 75 per tonne and imports of non-traditional ACP bananas are subject to a zero duty (second subparagraph of Article 18(1) of Regulation N o 404/93). Other than within the tariff quota, such imports are subject to a customs duty calculated on the basis of the Common Customs Tariff (Article 18(2) of Regulation N o 404/93).

5 The fourth subparagraph of Article 18(1) of Regulation N o 404/93 provides, how- ever, that where Community demand increases, the volume of the tariff quota should be consequentially increased in accordance with the management commit- tee procedure provided for in Article 27 of that regulation.

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6 The detailed rules for the implementation of Title IV of Regulation N o 404/93 were established by Commission Regulation (EEC) N o 1442/93 of 10 June 1993 laying down detailed rules for the application of the arrangements for importing bananasimo the Community (OJ 1993 L 142, p. 6, hereinafter 'Regulation N o 1442/93'), last amended by Commission Regulation (EC) N o 1409/96 of 19 July 1996 laying down detailed rules for the application of the arrangements for importing bananas into the Community, as regards eligibility criteria for category C operators and certain dates relevant to the administration of Community tariff quotas (OJ 1996 L 181, p. 13).

(b)as owners, the supply and release for free circulation of green bananas and sale with a view to their subsequent marketing in the Community; the risks of spoil- age or loss of the product shall be equated with the risk taken on by the owner;

(c) as owners, the ripening of green bananas and their marketing within the Com- munity'.

10 Article 5 of Regulation N o 1442/93 provides that, by 1 July for each year, the competent authorities of the Member States are to establish for each Category A and Category B operator registered with them the average quantities marketed during the three years prior to the year preceding that for which the quota was opened, broken down by reference to the different types of economic activity described in the definition of Operators' in Article 3 (Article 5(1) and (2)). They are to notify the Commission of the total weighted reference quantities and the total quantities of bananas marketed in respect of each activity (Article 5(3)). That average is termed the operator's 'reference quantity'.

11 Article 6 of Regulation N o 1442/93 provides as follows:

'Depending on the annual tariff quota and the total reference quantities of opera- tors as referred to in Article 5, the Commission shall fix, where appropriate, a single reduction coefficient for each category of operators to be applied to the operators' reference quantities to determine the quantity to be allocated to each.

The Member States shall determine the quantities for each operator in categories A and/or B registered with them and shall notify the latter thereof individually at the latest by 1 November.'

13 Article 1 of Regulation N o 2035/96 provides:

‘The provisional quantity to be allocated to each operator in Categories A and B for the period from 1 January to 31 December 1997 ... shall be calculated by apply- ing to the operator's reference quantity, determined in accordance with Article 5 of Regulation (EEC) N o 1442/93, the following single reduction coefficients:

— for each Category A operator: 0.601248,

— for each Category B operator: 0.470378'.

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18 The Commission submitted its written observations by document lodged at the Court Registry on 23 January 1997. Oral argument was heard from the parties on 6 February 1997.

Law

19 Under Articles 185 and 186 of the Treaty and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21), Council Decision 94/149/ECSC, EC of 7 March 1994 (OJ 1994 L 66, p. 29) and Council Decision 95/1/EC, Euratom, ECSC of 1 January 1995 (OJ 1995 L 1, p. 1) the Court may, if it considers that circumstances so require, prescribe any necessary interim measures.

20 Article 104(1) of the Rules of Procedure of the Court of First Instance specifies that an application to suspend operation of any measure adopted by an institution, made pursuant to Article 185 of the Treaty, is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance and that an application for adoption of any other interim measure referred to in Article 186 of the Treaty is admissible only if it relates to the main proceedings before the Court.

24 That plea of inadmissibility raised by the Commission has no basis in law. Article 185 of the Treaty gives the Court of Justice and the Court of First Instance juris- diction to order suspension of the application of any act 'contested' before them. Since acts which may be contested under the first paragraph of Article 173 of the Treaty are 'acts adopted jointly by the European Parliament and the Council, ... acts of the Council, of the Commission and of the ECB, other than recommenda- tions and opinions, and ... acts of the European Parliament intended to produce legal effects vis-à-vis third parties', any person who has contested such an act, even if it produces general effects, may apply for suspension of its operation under Article 185.

25 Any effects which the order suspending operation may have as regards third par- ties who have not applied for such an urgent measure are taken into consideration by the judge hearing the application for interim measures when examining the merits of the application, in particular when balancing the interests involved and assessing whether the effects of any suspending order should be circumscribed.

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26 Secondly, the Commission considers that the request for examination by the judge hearing the application for interim measures of the methods being used by the Commission and the Member States to verify operators' reference quantities is also inadmissible, since such a request is inappropriate in interlocutory proceedings: the measures being requested are measures of inquiry which fall under Article 65 of the Rules of Procedure. To grant them would, moreover, prejudge the substance of the case and is unnecessary in order to decide whether operation of Regulation N o 2035/96 should be suspended or not.

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particular under Article 186 of the Treaty, as regards urgent measures other than suspension of the operation of a Community act, are limited to the possibility of requiring one of the parties to the proceedings, including an institution, to ensure that a certain result is achieved pending the proceedings in the main action. The means necessary to achieve that result, particularly where they concern the internal organization of an institution, are not, in principle, taken into account when assessing the conditions which must be met for such measures to be adopted and may not, a fortiori, form the subject-matter thereof.

30 Furthermore, even if such a request could be admissible, the applicants have con- fined themselves to asking the Court 'to oblige the Commission to allocate suffi- cient resources to ensure that the double counting and overclaims are remedied, in a timely and adequate manner', without providing any details whatever concerning the Commission's relevant services or their operation (staff numbers and work- load) nor any evidence as to their allegedly inadequate operation, so that in these interlocutory proceedings the Court has been given no means by which to evaluate the merits of the request.

Substance

The nature of the measures sought by the interim application

33 Moreover, even if this request were to be construed as meaning that the C o m m i s - sion should be ordered to establish the correct reference quantities, it would remain ambiguous. If the C o m m i s s i o n were required to establish the correct refer- ence quantities on a provisional basis, such an order would n o longer be an interim one but w o u l d p r o d u c e effects identical to those sought in the main proceedings, since, if the main application were successful and Regulation N o 2035/96 were annulled, the Commission w o u l d be u n d e r an obligation to re-examine the situa- tion and adopt another regulation also laying d o w n a provisional coefficient. T h u s , in the C o m m i s s i o n ' s submission, such a request should be dismissed in accordance with the relevant case-law, in particular the order in Moccia Irme, cited above. Finally, if the request seeks an o r d e r that the C o m m i s s i o n establish the correct reference quantities on a definitive basis, it is premature. It goes beyond what the applicants seek in their main application, which is the annulment of a provisional regulation and not of a regulation fixing the definitive reference quantities for 1997, n o such regulation having yet been adopted.

34 At the hearing, the applicants specified that the request for examination seeks only an order that the Commission correct the reduction coefficient fixed by Regulation N o 2035/96 in such a way as to enable the national authorities to issue the appli- cants with the licences necessary to prevent an irreversible weakening of their pos- ition on the market.

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Urgency

— Arguments of the parties

38 The applicants submit that the application of Regulation N o 2035/96 fixing the provisional reduction coefficient for 1997 causes them irreparable harm as regards their market position not only for 1997 but also for subsequent years.

39 The fixing of the definitive coefficient for 1997 cannot change the situation created by the regulation in issue since, in principle, there would be no difference in the analysis of the data and thus of the reference quantities taken into consideration in the fixing of the provisional reduction coefficient. Moreover, the applicants submit, Regulation N o 2035/96 fixes the reduction coefficient applicable to import licences issued to Category A and B operators for the first three quarters of 1997. Thus, even if, when fixing the definitive coefficient, the Commission were to eliminate all overclaims and inaccuracies in the figures which it took as its basis when adopting Regulation N o 2035/96 and even if those corrections entitled the applicants to extra licences, they would not be in a position to use those licences in the fourth quarter of 1997, since they would have suffered considerable loss and would not have sufficient time to dispose of such large quantities of imported bananas on the Community market, on which, moreover, there is a considerable decline in demand at that time of year.

43 Finally, the Commission submits that, in any event, any harm which the applicants may have suffered as a consequence of the fixing of the reference quantities by Regulation N o 2035/96 is a loss which can be compensated. The applicants, it claims, concede this themselves, since they have lodged an application in the main proceedings for an award of damages under Articles 178 and 215 of the Treaty.

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— Findings of the President

44 The serious and irreparable harm on which the applicants base their application for interim measures comprises (i) the definitive loss, for the current marketing year, of a considerable part of their rights to import bananas as a result of the applica- tion to their reference quantities, in accordance with Article 6 of Regulation N o 1442/93, of the reduction coefficient fixed by Regulation N o 2035/96 and (ii) the erosion of such import rights in the future as a result of the reduction of the number of import licences issued in 1997, which will be taken into consideration when their reference quantities for future years are calculated.

45 However, even if the application of the reduction coefficient laid d o w n in Regu- lation N o 2035/96 for Category A operators, which is 0.601248 and thus involves a greater reduction than would that of 0.861645 calculated by the applicants, does entail a reduction of the applicants' i m p o r t rights in relation to those to which they consider themselves entitled, they have not demonstrated that such harm is serious and irreparable.

48 Furthermore, such a reduction in the applicants' market share also appears to be reparable. First, the Commission must, during the course of the year, fix a defini- tive reduction coefficient to be applied, under Article 6 of Regulation N o 1442/93, to the reference quantities of Category A operators for 1997. Second, as the Com- mission pointed out at the hearing, ever since the establishment of the common organization of the market in bananas, it has had to fix, pursuant to Article 9 of Regulation N o 1442/93, indicative quantities for each quarter for the purposes of issuing import licences in the framework of the annual tariff quota. So it cannot be ruled out that, following the adoption of those regulations, the applicants may be in a position in the last quarter or quarters of the current marketing year to recoup the loss which they claim they will have to suffer during the earlier part of the year. They have not put forward any evidence during the present proceedings to show that such a possibility is to be ruled out.

49 Moreover, if that were not possible, any definitive reduction in the quantities of bananas which the applicants will be able to import in 1997 would constitute an economic loss which could be made good by the means of redress provided for in the Treaty, in particular in Articles 178 and 215.

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51 Upholding the interim application would, furthermore, entail the adoption of mea- sures which would not be provisional but which would produce effects identical to those sought in the main application, since they would merely anticipate what would ensue from annulment of Regulation N o 2035/96 by correcting the provi- sional reduction coefficient until the Commission adopted the definitive coeffi- cient. Since, in accordance with Article 107(4) of the Rules of Procedure, the mea- sures which may be ordered in interlocutory proceedings must be interim measures, in the sense that they must in principle cease to produce their effects as soon as final judgment is given in the case and must not in any way anticipate the Court's decision on the substance, and since they must be ancillary in the sense that they must only seek 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 rendered illusory by being deprived of any practical effect (see the orders in Case C-313/90 R CIRFS and Others v Commission [1991] ECR I-2557, paragraphs 23 and 24, and Moccia Irme, cited above, paragraph 29), this application for interim measures cannot be granted.

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52 Consequently, since the applicants have not duly supported their application for interim measures by demonstrating the risk of harm if those measures are not granted, that application must be dismissed, without there being any need to con- sider whether the pleas in law and arguments put forward in support of the main action appear prima facie well founded.

H. Jung A. Saggio

Registrar President

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