T-39/97

Communities,, represented by Dierk Booß, Princi­ Commission of the European Communities pal Legal Adviser, Klaus-Dieter Borchardt and Hubert van Vliet, of its Legal Ser­ vice, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for a declaration pursuant to Article 175 of the EC Treaty that the Commission has failed to take a decision on the applicant's request dated 16 December 1996 for the allocation of additional import licences as a transitional measure within the framework of the common organization of the market in bananas,

case:: German * Language of the case German..

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1 Council Regulation (EEC) No 404/93 of 13 February 1993 on the common orga­ nization of the market in bananas (OJ 1993 L 47, p . 1) established common arrangements for importing bananas in place of the various national arrangements. The common organization was most recently supplemented by Commission Regu­ lation (EC) No 478/95 of 1 March 1995 on additional rules for the application of Council Regulation (EEC) No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending Regulation (EEC) No 1442/93 (OJ 1995 L 49, p . 13).

2 In Title IV of Regulation No 404/93, concerning trade with third countries, Article 18(1), as amended by Council Regulation (EC) No 3290/94 of 22 December 1994 on the adjustments and transitional arrangements required in order to implement

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the agreements concluded during the Uruguay Round of multilateral trade nego­ tiations (OJ 1994 L 349, p. 105), provides for the opening of a tariff quota of 2.1 million tonnes (net weight) for 1994 and of 2.2 million tonnes (net weight) for the following years for imports of bananas from third countries other than the ACP States ('third-country bananas') and non-traditional imports of bananas from ACP States ('non-traditional ACP bananas'). Within the framework of that quota, imports of non-traditional ACP bananas are subject to a zero duty and imports of third-country bananas are subject to a duty of ECU 75 per tonne.

3 The first subparagraph of Article 19(1) divides the tariff quota between specific categories of operators. Article 19(2) provides:

'If the tariff quota is increased, the additional available quantity shall be allocated to operators in the categories referred to in paragraph 1.'

6 Article 30 provides:

'If specific measures are required after July 1993 to assist the transition from arrangements existing before the entry into force of this Regulation to those laid down by this Regulation, and in particular to overcome difficulties of a sensitive nature, the Commission ... shall take any transitional measures it judges necessary.'

Facts

7 The applicant, a fruit importer established in Germany, has traded in third-country bananas since the beginning of the century. Since the common organization of the banana markets was established on 1 July 1993, the applicant has sought the alloca­ tion of reference quantities in order to secure its economic survival as an importer of bananas.

8 By interlocutory order of the Hessischer Verwaltungsgerichtshof (Higher Admin­ istrative Court, Hesse) of 9 February 1995, the applicant obtained special import licences for 2 500 tonnes and, by decision of the Finanzgericht (Finance Court), Hamburg, a special quota, exempt from the need for a licence, of 9 839 tonnes of third-country bananas.

10 In its judgment of 26 November 1996 in Case C-68/95 T. Port ν Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I-6065, the Court of Justice ruled, inter alia, that the Treaty does not authorize national courts to order provisional measures in proceedings for the grant of interim relief until such time as the Com­ mission has adopted an act with legal effect to deal, in accordance with Article 30 of Regulation No 404/93, with cases of hardship affecting traders. It also ruled that Article 30 of that regulation authorizes and, depending on the circumstances, requires, the Commission to lay down rules catering for cases of hardship arising from the fact that importers of third-country bananas or non-traditional ACP bananas meet difficulties threatening their existence because an exceptionally low quota has been allocated to them on the basis of the reference years to be taken into consideration under Article 19(2) of that regulation, provided 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.

1 1 By letter dated 16 December 1996 the applicant requested the Commission rapidly to adopt measures applicable to cases of hardship and, in particular, sought the allocation of additional import licences for third-country bananas under the tariff quota. That letter was served on the defendant on 23 December 1996 by registered post. The defendant did not define its position within the two months following that request.

15 By documents lodged at the Court Registry on 4 June 1997 and 30 July 1997, the French Republic and the Kingdom of Spain applied to intervene in this case in support of the forms of order sought by the Commission.

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16 By letter of 9 July 1997 the Court requested the parties to explain the reference in the application to contacts between the applicant and the Commission's staff dur­ ing January 1997 and to supply the Court with full copies of any correspondence concerned. By reply dated 18 July 1997, the applicant confirmed that the contacts which it had mentioned were exclusively in writing and it filed copies of the letters in question.

17 By letter lodged at the Registry of the Court of First Instance on 16 July 1997, the Commission stated that by decision of 9 July it had rejected the requests made by the applicant in its letter of 16 December 1996 for the allocation of additional import licences which are the subject-matter of the present claim for a declaration of failure to act. The Commission is accordingly of the opinion that the action has become devoid of purpose and that it is likewise no longer necessary to answer the Court's written question of 9 July 1997, unless the Court should indicate to the contrary.

18 The applicant was requested to submit its observations as to whether, in its opin­ ion, the action for a declaration of failure to act still had a purpose in the light of the information contained in the Commission's letter of 16 July 1997.

22 According to case-law, the remedy provided for in Article 175 of the Treaty is founded on the premiss that the failure to act on the part of a Community institu­ tion enables an action to be brought before the Court in order to obtain a declara­ tion that the failure to act is contrary to the Treaty, in so far as it has not been remedied by the institution concerned. The effect of that declaration under Article 176 of the Treaty is that the defendant institution is required to take the necessary measures to comply with the judgment of the Court . In a case such as the present one, where the act whose absence constitutes the subject-matter of the proceedings was adopted after the action was brought but before judgment, a declaration by the Court to the effect that the initial failure to act is unlawful can no longer lead to the result envisaged by Article 176 of the Treaty. It follows that the subject- matter of the action has ceased to exist (see Joined Cases C-15/91 and C-108/91 Buchi and Others ν Commission [1992] ECR 1-6061, paragraphs 14 and 15).

23 In consequence, there is no longer any need to rule on the claim.

24 Moreover, it should be pointed out that by application lodged at the Registry of the Court of First Instance on 12 September 1997 the applicant has brought an action for annulment of the decision of 9 July 1997. That action was registered as Case T-251/97.

25 Furthermore, the fact that the applicant has asked the Court to give judgment in its favour, pursuant to Article 122 of the Rules of Procedure, does not preclude the Court from rinding that the action has become devoid of purpose and that there is

28 The Court considers that it is equitable for the applicant to bear all the costs of the application for interim measures, since it withdrew that application after the inter­ locutory hearing but before the President of the Court had given an order.

29 As regards the other costs relating to the action for a declaration of failure to act, the Court points out that on the date when the Commission was formally requested to act, namely 23 December 1996, less than a month had elapsed since judgment was given in T. Port, cited above. This action was brought on 27 Febru­ ary 1997, exactly two months after the Commission had been formally requested to act. The Court considers that, having regard to the complexity of the economic situations which the Commission was called upon to examine, it was not unrea­ sonable for the latter not to answer the applicant's requests within the period of two months before the action was brought. In those circumstances, the Court con­ siders that the parties must be ordered to bear their own costs in respect of the action for a declaration of failure to act.

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On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

Registrar President

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