T-230/97

COMAFRICA AND DOLE FRESH FRUIT EUROPE 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 1 October 1997*

In Case T-230/97 R,

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

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 Arsène Kronshagen, 22 Avenue Marie-Adélaïde,

* Language of the case: English.

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intervener,

A P P L I C A T I O N under Articles 185 and 186 of the EC Treaty for (i) an order sus- pending the operation of Commission Regulation (EC) N o 1155/97 of 25 June 1997 fixing the reduction coefficients for the determination of the quantity of bananas to be allocated to each operator in categories A and B from the tariff quota for 1997 (OJ 1997 L 168, p. 67) in so far as that regulation affects the appli- cants, or, alternatively, suspending its operation erga omnes and (ii) an order requiring the setting of a specific reduction coefficient for the applicants, such that they are issued with the correct number of import licences for bananas in the remaining months of 1997, in accordance with their rights under Community law, and (iii) any additional orders which the Court considers necessary for the pur- poses of granting interim relief to the applicants,

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

of 22 December 1994 on the adjustments and transitional arrangements required in the agriculture sector in order to implement the agreements concluded during the Uruguay Round of multilateral trade negotiations (OJ 1994 L 349, p. 105). Regu- lation N o 404/93 had the effect of introducing as from 1 July 1993 a common import system to replace the various national systems which had operated until that time.

2 Title IV of Regulation N o 404/93, which deals with trade with third countries, provides for the opening of an annual tariff quota for imports of third-country bananas and non-traditional bananas produced in the countries with which the Community has concluded the Lomé Convention (hereinafter 'ACP bananas'). The terms 'traditional imports' and 'non-traditional imports' of ACP bananas are defined in Article 15a of Regulation N o 404/93. 'Traditional imports' from A C P States means the quantities, listed in an annex to Regulation N o 404/93, of bananas exported to the Community by each A C P State which has traditionally exported bananas to the Community. Quantities of bananas exported by A C P States in excess of the figures set out in the annex are designated 'non-traditional A C P bananas'.

3 The first subparagraph of Article 18(1) of Regulation N o 404/93 provided for the opening each year 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. However, the fourth subparagraph of Article 18(1) and Article 30 of Regulation N o 404/93 provided that, where Com- munity demand increases, the volume of the quota is to be consequentially increased by regulation of the Commission, in accordance with the Management Committee procedure provided for in Article 27 of that regulation. For 1997, the volume of the tariff quota for banana imports was increased to 2 553 000 tonnes by Commission Regulation (EC) N o 1154/97 of 25 June 1997 (OJ 1997 L 168, p. 65), with a reserve of 10 000 tonnes to allow for the adoption of specific measures.

5 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 bananas into the Community (OJ1993 L142, p. 6, hereinafter 'Regulation N o 1442/93'), as last amended by Regulation (EC) N o 1409/96 of 19 July 1996. Under Article 2 of Regulation N o 1442/93 a distinction is made between those operators who, prior to 1992, had marketed third-country bananas and/or non- traditional ACP bananas, designated 'Category A operators', those who marketed Community bananas and/or traditional ACP bananas, designated 'Category B operators', and those who started marketing bananas other than Community bananas and/or traditional ACP bananas as from 1992 or thereafter, designated 'Category C operators'. Under Article 3(1) of Regulation N o 1442/93, economic agents are deemed to be operators in Category A and/or Category B where 'they have engaged in one or more of the following activities on their own account:

(a) the purchase of green third-country and/or A C P bananas from the producers, or, where applicable, the production, consignment and sale of such products in the Community;

(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 spoilage 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'.

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8 Regulation N o 2035/96 was repealed by Commission Regulation (EC) N o 1155/97 of 25 June 1997 fixing the reduction coefficients for the determination of the quan- tity of bananas to be allocated to each operator in Categories A and B from the tariff quota for 1997 (OJ 1997 L 168, p. 67, hereinafter 'Regulation N o 1155/97'). Article 1 of that regulation provides: 'The quantity to be allocated to each operator in Categories A and B in respect of the period from 1 January to 31 December 1997 ... shall be calculated by applying to the operator's reference quantity, deter- mined in accordance with Article 5 of Regulation (EEC) N o 1442/93, the follow- ing single reduction coefficients:

— for each Category A operator: 0.732550

— for each Category B operator: 0.540459.'

9 The reduction coefficient for Category A is calculated by dividing the reference quantity of Category A operators throughout the Community by the share of the total quota reserved to Category A operators.

12 By separate document, registered at the Court on 5 August 1997, the applicants applied under Articles 185 and 186 of the EC Treaty for interim measures, asking the Court to (i) suspend operation of Regulation N o 1155/97 in so far as it affects them or alternatively to suspend it erga omnes, (ii) order the adoption of a specific reduction coefficient in their respect such that they are issued with the correct number of import certificates for bananas in the remaining months of 1997, in accordance with their rights under Community law, and (iii) make any additional orders which the Court considers necessary for the purposes of granting interim relief to the applicants.

1 3 The Commission submitted its written observations in a document lodged at the Court Registry on 19 August 1997.

u By document lodged at the Court Registry on 11 August 1997, the French Repub- lic sought leave to intervene in support of the Commission. By documents lodged at the Court Registry on respectively 19 August and 20 August 1997, the Com- mission and the applicants stated that they did not oppose the application for leave to intervene.

is By document lodged at the Court Registry on 20 August 1997 the applicants asked for certain parts of their application for interim measures to be treated confiden- tially owing to the commercial nature of the information contained therein. By document lodged at the Court Registry on 28 August 1997 the Commission stated that it did not oppose that application.

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The application for interim measures

i9 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, E E C of 8 June 1993 (OJ 1993 L 144, p. 21), by Council Decision 94/149/ECSC, E C of 7 March 1994 (OJ 1994 L 66,

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COMAFRICA AND DOLE FRESH FRUIT EUROPE v COMMISSION

p. 29) and by Council Decision 95/1/EC, Euratom, ECSC of 1 January 1995 adjusting the instruments concerning the accession of new Member States to the European Union (OJ 1995 L 1, p. 1), the Court may, if it considers that circum- stances so require, order that application of the contested act be suspended or pre- scribe any necessary interim measures.

20 Article 104(1) of the Rules of Procedure states 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 pro- ceedings 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 to be admis- sible only if it relates to the main proceedings before the Court of First Instance.

ORDER OF 1. 10. 1997 - CASE T-230/97 R

number of import licences for 1997 and therefore be entitled to import fewer third-country bananas and non-traditional A C P bananas into the European Union before the end of the 1997 marketing year. It is the Commission which, by its unlawful action, has contributed to creating this urgency, in that it first set a pro­ visional reduction coefficient for 1997 and then belatedly adopted, on 25 June 1997, by Regulation N o 1155/97, the definitive reduction coefficient for 1997: since the adverse effects of that latter regulation will begin to be felt in the fourth quar­ ter of 1997, which begins in October, a remedy is needed for the situation which is likely to be created by provisional measures having to be adopted before that date.

amount of their market share' will have been 'illegally expropriated': since access by operators to the market is dependent on the issue of import licences by the national authorities, the illegal reduction of the applicants' licence entitlement will have the effect of gradually driving them out of the European banana market until they disappear completely. The applicants point out here that the reduction in their market access is likely to affect the relationships and confidence which they enjoy with the large supermarket chains through which bananas are mostly sold, those chains requiring regular supplies of high-quality goods; once those relationships of confidence are lost, they are 'often impossible to re-establish'.

26 The applicants state that they have been able to 'recoup' some of the 'lost' Cat- egory A licences by purchasing Category B licences from Community operators. However, this solution has the disadvantage that Category B licences are available for purchase only on a quarterly basis, which prevents effective planning of the operations linked to the marketing of bananas. Furthermore, a World Trade Orga- nization (WTO) Dispute Settlement Panel has ruled that the Category B licensing system is not compatible with the General Agreement on Tariffs and Trade (GATT) and that the activity function rules are not compatible with the General Agreement on Trade in Services (GATS): if this finding is upheld by the W T O Dispute Settlement Body, the only alternative source of supplies available to the applicants will dry up, thus aggravating further the loss of which they complain.

Findings of the President

30 The serious and irreversible damage 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 application to their reference quantities, in accordance with Article 6 of Regulation

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COMAFRICA AND DOLE FRESH FRUIT EUROPE v COMMISSION

N o 1442/93, of the reduction coefficient fixed by Regulation N o 1155/97 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.

3i However, even if the application of the reduction coefficient laid down in Regu- lation N o 1155/97 for Category A operators, which is 0.732550 and thus involves a greater reduction than would that calculated by the applicants, which is 0.8412771, does entail a reduction of the applicants' import rights in relation to those to which they consider themselves entitled, it has not been demonstrated by the applicants themselves that this damage is serious and irreversible.

34 In the present case, the loss of market share which the regulation at issue will allegedly cause the applicants to surfer, as set out in paragraphs 114 and 115 of their application for interim measures, consisting in an allegedly incorrect reduc- tion of [...] tonnes for Comafrica's imports of bananas and of [...] tonnes for Dole, has been calculated on the basis of reference quantities for 1997 in the order of [...] tonnes for Comafrica and [...] tonnes for Dole. However, the loss which the appli- cants claim they will wrongly have to suffer during the current marketing year, amounting to approximately 1 1 % , cannot be regarded as being such as to cause serious damage to undertakings of their size (see the order of the President of the Court of Justice of 26 February 1981 in Case 20/81 R Arbed and Others v Com- mission [1981] ECR 721, paragraph 14, and the order of the President of this Court of 3 March 1997 in Comafrica and Dole v Commission, cited above, paragraph 47, in which the amount of loss allegedly suffered by the applicants was much greater ([...] tonnes for Comafrica and [...] tonnes for Dole) than the loss claimed in this case).

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able estimation, the judgment in the main proceedings will have been delivered — that there will be an actual reduction of around 15% in the licensed quantities obtained by the applicants (from 76 500 to 64 684).

36 It should be recalled here that, although the Court of Justice has not ruled out the possibility that, in the field of the Community banana regulations, the Court of First Instance may adopt interim measures under Article 186 of the Treaty, includ- ing the allocation of some provisional licences (judgment in Case C-68/95 T. Port v Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR 1-6065, paragraph 60), it is evident that this course must be limited to exceptional cases (ibid., para- graphs 57 and 58), of which it has not been established that the present case is one.

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way anticipate the decision of the Court on the substance. Secondly, those mea- sures must be ancillary, in the sense that their purpose must only be 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 proceed- ings from being rendered illusory by being deprived of any practical effect (see the order of the President of the Court of Justice of 17 May 1991 in Case C-313/90 R CIRFS and Others v Commission [1991] ECR 1-2557, paragraphs 23 and 24).

38 In any event, the President considers that the damage alleged by the applicants is reparable. Any reduction in banana imports for 1997 would constitute an econ- omic loss which could be made good by the means of redress provided for in the Treaty, in particular in Articles 178 and 215 (see the order of the President of the Court of First Instance of 3 March 1997 in Case T-6/97 R Comafrica and Dole v Commission, cited above, paragraph 49).

4i 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 applica- tion must be dismissed, without there being any need to consider whether the pleas in law and arguments put forward in support of the main action appear prima facie well founded.

O n those grounds,

T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE

hereby:

1. Grants the French Republic leave to intervene in support of the form of order sought by the Commission;

2. Grants the applicants' request for confidential treatment of certain infor- mation submitted to the Court;

H. Jung A. Saggio

Registrar President

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