T-260/97

CAMAR COMMISSION AND COUNCIL

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE 10 December 1997 *

In Case T-260/97 R,

Srl,, a company incorporated under Italian law, having its registered office Camar Srl in Florence (Italy), represented by Wilma Viscardini Dona, assisted by Mariano Paolin and Simonetta Dona, of the Padua Bar, with an address for service in Luxembourg at the Chambers of Ernst Arendt, 8-10 Rue Mathias Hardt,

applicant,

ν

intervener,

case:: Italian * Language of the case Italian..

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APPLICATION to the President of the Court of First Instance pursuant to Articles 185 and 186 of the EC Treaty for (a) an order suspending the Commis­ sion's decision of 17 July 1997 rejecting the application submitted by Camar seek­ ing the adoption of specific measures within the meaning of Article 30 of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas and, furthermore, (b) an order requiring the Commission to calculate the number of Category B licences to which Camar is entitled in respect of 1998, by reference to the quantities of bananas imported in the three-year period from 1988 to 1991, and, in the alternative, to calculate the said licences by reference to the quantities of bananas imported in the three-year period from 1989 to 1991, or by applying the criteria set out by the European Parliament in its Amendment No 8 to the proposal of the Commission, submitted on 8 March 1996, to amend the abovementioned Regulation No 404/93 and, in the further alternative, to grant to Camar financial aid equal to the market value of the Cat­ egory B licences to be calculated according to one of the criteria set out above.

THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

22 December 1994 on the adjustments and transitional arrangements required in the agricultural sector in order to implement the agreements concluded during the Uruguay Round of multilateral trade negotiations (OJ 1994 L 349, p. 105). The main provisions of Regulation No 404/93 which fall to be considered in the present dispute are Article 15a, Article 18(1) and (2), Article 19(1) and (2), Article 16(1) and (3) and Article 30.

2 Under the arrangements on trade with third countries, which are the subject of Title IV of Regulation No 404/93, a tariff quota is to be opened each year for imports of third-country bananas (from non-ACP third countries) and non- traditional ACP bananas. The terms 'traditional imports' and 'non-traditional imports' from ACP States are defined in Article 15a. 'Traditional imports from ACP States' means the quantities of bananas, specified in the annex to Regulation No 404/93, exported by those ACP States which have traditionally exported bananas to the Community. For Somalia, the quantity of 'traditional imports' was fixed at 60 000 tonnes. The quantities of bananas exported by the ACP States which exceed the quantity defined above are 'non-traditional imports from ACP States'.

3 As regards imports of third-country bananas and non-traditional ACP bananas, the first subparagraph of Article 18(1) provides for the opening each year of a tariff quota of 2.2 million tonnes/net weight and the second subparagraph thereof pro­ vides that, within the framework of that quota, third-country imports are to be subject to a levy of ECU 75 per tonne and those of non-traditional ACP bananas are subject to a zero duty. The second subparagraph of Article 18(2) further pro­ vides that bananas, whether they come from non-traditional ACP countries or from third countries, imported outside the tariff quota are subject to a customs duty calculated on the basis of the Common Customs Tariff.

7 Finally, 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 dif­ ficulties of a sensitive nature, the Commission, acting in accordance with the pro­ cedure laid down in Article 27, shall take any transitional measures it judges neces­ sary.'

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CAMAR ν COMMISSION AND COUNCIL

Facts and procedure

8 The applicant, Camar, a limited liability company incorporated under Italian law, is, in the context of the common organization of the market described above, the only 'traditional importer' of bananas from Somalia.

9 It was acquired in 1983 by the De Nadai group which at present holds 50 % of its capital. The De Nadai group owns, among others, the Tico company, which also imports bananas into Italy, and has moreover a majority holding in Somalfruit, an undertaking which is concerned with banana production in Somalia.

14 During that period the quantities of bananas imported from Somalia, again by the applicant, amounted to approximately 482 tonnes in 1993, 1 321 tonnes in 1994, 14 140 tonnes in 1995 and 15 780 tonnes in 1996 (see the order of the President in Camar v Commission, cited above, paragraph 14). So far as concerns 1997, Camar reports 11 955.614 tonnes by way of imports of bananas from Somalia. Further­ more, as stated by the applicant at the hearing, Tico, a company in the De Nadai group, will have imported into Italy, in 1997, about 6 000 tonnes of Somalian bananas. It appears, moreover, from the 'Relazione sulla produzione ed esportazi­ one di banane dalla Somalia dalla Baia di Merca' (The report on the production and export of bananas from Somalia through the Bay of Merca) produced by the applicant (Annex 4 to the application in the main proceedings) that the entire imports by the De Nadai group for 1997 cannot exceed 27 000 tonnes.

15 From the first years after the entry into force of the common organization of the markets, Camar repeatedly requested the Commission to increase its third-country banana quota by an amount equal to the difference between the traditional quan­ tity of Somalian bananas provided for by Regulation No 404/93 (60 000 tonnes) and the quantities actually imported or which could be imported into the Com­ munity by Camar and to issue it with the licences corresponding to the difference between those quantities. The applicant therefore asked for the adoption of mea­ sures similar to those taken after cyclones Debbie, Iris, Luis and Marilyn in respect of imports of bananas from the Community regions of Martinique and Guade­ loupe as well as from the ACP countries of Saint Lucia and Dominica.

20 On 5 June 1997, before the Commission had taken a decision on the abovemen­ tioned request for urgent administrative measures, Camar brought another action under Article 175 of the EC Treaty, registered as Case T-172/97, together with an application for interim measures pursuant to Article 186 of the EC Treaty. Follow­ ing the Commission's decision of 17 July 1997 rejecting the request for administra­ tive measures, Camar withdrew its application brought under Article 186 and, by order of the President of the Court of First Instance of 8 October 1997, the case was removed from the register.

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21 By another application lodged at the Court Registry on 25 September 1997, Camar sought the annulment of the Commission decision of 17 July 1997 and an order requiring the Community to pay compensation for the damage suffered by the applicant following the refusal by the Commission to take into account, in calcu­ lating Category B licences, its reference quantity prior to the outbreak of the war and, in the alternative, to order compensation to be paid to Camar for failure to adopt a specific provision within the framework of Regulation No 404/93 allowing situations 'such as that' of the applicant to be resolved.

The application for leave to intervene

25 Since the application made by the French Government for leave to intervene was lodged in accordance with Article 115 of the Rules of Procedure of the Court of First Instance and pursuant to the first paragraph of Article 37 of the EC Statute of the Court of Justice, applicable to the procedure before the Court of First Instance by virtue of Article 46 thereof, the French Republic is granted leave to intervene in the present proceedings for interim relief in support of the form of order sought by the defendants.

The application for interim measures

26 Under Articles 185 and 186 of the Treaty in conjunction with 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 No 93/350/Euratom, ECSC , EEC of 8 June 1993 (OJ 1993 L 144, p. 21), and by Council Decision 94/149/ECSC, EC of 7 March 1994 (OJ 1994 L 66, p . 29), the Court of First Instance may, if it considers that circum­ stances so require, order that application of the contested act be suspended or may prescribe any necessary interim measures.

27 Article 104(2) of the Rules of Procedure provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. The measures sought must be provisional in that they must not prejudge the decision on the substance (see, in particular, the order of the President of the Court of First Instance in Camar v Commission, cited above, paragraph 21).

30 The scarcity of Somalian imports is not due to the insufficiency of local produc­ tion, which at present covers the entire quantity of traditional imports of 60 000 tonnes, laid down in the annex to Regulation No 404/93, but to the difficulties encountered when loading the bananas on merchant ships. The applicant com­ plains that, following the closure of the port of Mogadishu, the only loading point which remained was the Bay of Merca where vessels cannot come alongside and where the crates of bananas are transported on barges towed by tugs to vessels anchored 1 500 metres off the coast, so that a loading operation which under nor­ mal conditions can be carried out in one day requires some seven days. Moreover, during the monsoon season, which coincides with the third quarter of every mar­ keting year, loading operations in the Bay of Merca are rendered impracticable by the conditions at sea. Thus, the resumption of the Somalian banana production would not be sufficient to guarantee Camar's survival. Furthermore, according to the applicant, Somalian bananas, like all ACP bananas, are less in demand on the European market. For all those reasons, the importation of Somalian bananas would not be profitable in the present situation.

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CAMAR ν COMMISSION AND COUNCIL

31 So far as concern imports from third countries, Camar points out that reduction of its activity (its imports decreased from 22 598 tonnes in 1991 to 7 545.823 tonnes in 1997) was due to the gradual decrease in Category Β licences which, in accord­ ance with Regulation No 404/93, were issued to it on the basis of the quantities of bananas imported from Somalia. It points out moreover that the reduction in imports of bananas originating in ACP countries during the war years and imme­ diately thereafter caused a gradual reduction of the quota for imports from third countries.

35 The Commission goes on to point out a number of facts which, it claims, show that Camar's economic situation is better than Camar itself alleges. The Commis­ sion states that not only do the documents produced by Camar concerning its activity not confirm the existence of considerable economic difficulties, but 'objec­ tive factors' demonstrate that the applicant was in a stable financial situation and is thus unlikely to leave the market.

36 First, the Commission states that, according to the information provided by the relevant Chamber of Commerce, Camar's turnover in 1993 was LIT 4.330 billion, in 1994 7 billion and in 1995 10 billion and that, although in 1993 there was a loss of 241 million, in 1994 Camar reported profits of 2 million and in 1995 profits of 160 million. However, according to the Commission, the fact that Camar's turnover is so considerable makes it 'at least unlikely that it does not have the necessary economic means to provide the securities for the licences for the fourth quarter of 1997 and even more unlikely that the cause of such economic difficulty is due to the COM' (common organization of the market).

37 Secondly, the Commission, basing itself on the fact that, as a holder of A and B licences, Camar imported in 1997 more than 36 000 tonnes of bananas of which 27 000 were from Somalia and 9 600 were from third countries, refuses to accept that Camar — which, as is common ground, was able to operate from 1981 to 1987 importing approximately 30 000 tonnes of bananas per year — cannot continue to

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CAMAR COMMISSION AND COUNCIL

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40 Finally, the French Government points out that, notwithstanding the transport dif­ ficulties complained of by Camar, there are other undertakings interested in importing bananas from Somalia.

The findings of the President as to urgency

41 Article 104(2) of the Rules of Procedure provides that applicants must state, in applications for interim measures 'the subject-matter of the proceedings, the cir­ cumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for'.

42 It is settled case-law that it is necessary to assess urgency by examining whether, pending the Court's decision on the substance, the applicant could suffer serious and irreversible harm which cannot be made good by the judgment in the main proceedings. Damage of a purely financial nature cannot in principle be regarded as irreparable, or reparable only with difficulty, if it can ultimately be the subject of financial compensation (see, most recently, Case T-230/97 R Comafrica v Commis- sion [1997] ECR11-1589, paragraph 32). Damage can be considered irreparable when the undertaking's position on the market is at risk, in that the possible loss of the market cannot be made good even by receipt of financial compensation.

because importers who had already been operating in them before the creation of the common organization had consolidated their positions; and that, finally, it was obliged also to reduce imports from third countries because the number of licences obtainable for that type of import decreased as a result of the reduction of imports from Somalia, the amount of those imports constituting the reference criterion for the issue of such licences. Camar claims, in the second place, that following that forced reduction in its activity it was constrained to incur debts within the De Nadai group (a group which, as has been stated above, holds 50 % of its capital) and to dismiss its staff, decreasing its staff from 12 to only six. It states that if, in such circumstances, it does not obtain, through the grant of appropriate interim measures, additional licences for the import of bananas from non-member coun­ tries, it will have no choice but to close down its business.

44 The defendants and the French Government contest the facts asserted by the appli­ cant. They state that the quantity of bananas imported by Camar in 1997 was 37 000 and was amply sufficient to enable it to survive. They state, furthermore, that, according to the information provided by the relevant Chamber of Com­ merce, Camar's finances are in perfect balance in the current year and it had, more­ over, made some profit both in 1994 and 1995. They go on to add that it can take advantage of the import licences granted to Tico, the entirety of whose capital is held by the De Nadai group, and note that licences were issued to that company precisely for the fourth quarter of 1997, the period in respect of which Camar complains that it had not been able to request any licences since it did not have the necessary liquidity to lodge the requisite securities.

47 In this regard, it should be observed first that the existence of such financing was merely asserted, and, moreover, in the most general terms, although questions were put at the hearing to the applicant specifically in order to obtain precise infor­ mation on that aspect. The amounts involved and the periods during which the various payments of funds were made were not mentioned; nor were the legal enti­ ties which allegedly carried out those operations adequately identified, and no cor­ roborating accounting documents of any kind whatever were produced, despite the fact that the operations in question form an integral part of the life of legal entities required to draw up annual balance sheets and preserve documents pertain­ ing to their activities. It should next be observed that, in any event, that aspect could not have a significant influence on the overall assessment of the applicant's economic circumstances and specific operational possibilities, since the De Nadai group owns 50% of that company's capital and, therefore, its assistance, even assuming it to have been given, would constitute a purely internal operation, as the applicant itself acknowledged at the hearing.

48 So far as concerns, next, the second aspect to be taken into consideration, that is the volume of banana imports effected by Camar, the figures provided by the par­ ties show that, as from 1993, the year in which the common organization of the markets was established, that organization significantly reduced the quantity of bananas imported annually both from ACP countries and third countries. That quantity decreased from an average of approximately 53 000 tonnes during the last four years immediately prior to the establishment of the common organization to

51 That remains the case even if account is taken of other significant factors which the parties mentioned in their pleadings or which emerged at the hearing: the loss of competitiveness of Somalia bananas on the Italian market and the increase in trans­ port costs as a result of the port of Mogadishu becoming impossible to use.

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52 As regards the first factor, Camar itself admits that bananas coming from Somalia as well as, more generally, all those coming from ACP countries, have lost their competitiveness on the Italian market and that, for this reason too, the issue of additional licences for the importation from third countries of bananas of a differ­ ent quality would secure for it significant advantages by enabling it to overcome the difficulties it is currently facing. That argument is not one that can lend sup­ port to the application for interim measures, that is to say the application for addi­ tional licences for imports from third countries. On the contrary, the reduction in demand for Somalia bananas on the Italian market, which may be attributed to a change in consumer trends, bears no causal relationship with the system under the common organization but is entailed rather by the uncertainties normally associ­ ated with the pursuit of any business activity.

53 So far as concerns, furthermore, the increase in transport costs due to the impos­ sibility of using the port of Mogadishu, it must be acknowledged that this is a fac­ tor of an exceptional nature (a factor which the Commission probably could have taken into account, pursuant to Article 30 of Regulation No 404/93, when examin­ ing the repeated applications for licences submitted by Camar). The applicant has not, however, shown that that increase in costs is such as to render the pursuit of its activities impossible until judgment is given on the merits or, in any event, as to cause irreversible damage to its position on the market.

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

dismissed.. 1. The application for interim relief is dismissed

reserved.. 2 . Costs are reserved

Luxembourg, 10 December 1997.

H. Jung A. Saggio