C-43/98

ORDER OF 15. 4. 1998 — CASE C-43/98 P(R)

O R D E R O F T H E PRESIDENT O F T H E C O U R T 15 April 1998 *

In Case C-43/98 P(R),

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

appellant,

A P P E A L against the order of the President of the Court of First Instance of the European Communities of 10 December 1997 in Case T-260/97 R Camar v Com- mission and Council [1997] II-2357, seeking to have that order set aside and to have the interim measures sought at first instance granted,

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supported by

French Republic, represented by Kareen Rispal-Bellanger, Deputy Director in the Legal Directorate, Ministry of Foreign Affairs, and Christina Vasak, Assistant For- eign Affairs Secretary in the same Directorate, acting as Agents, with an address for service in Luxembourg at the French Embassy, 8 Boulevard Joseph II,

intervener at first instance,

and by

1 By application lodged at the Registry of the Court on 20 February 1998, Camar Sri brought an appeal against the order of the President of the Court of First Instance of 10 December 1997 in Case T-260/97 R Camar v Commission and Council [1997] ECR II-2357 (hereinafter 'the order under appeal'), dismissing its application for interim measures.

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2 The appellant seeks to have the order under appeal set aside and the forms of order sought at first instance allowed.

3 By application lodged at the Registry of the Court on 6 March 1998, the Kingdom of Spain applied for leave to intervene in these proceedings.

4 Pursuant to the first paragraph of Article 37 of the EC Statute of the Court of Justice, the Kingdom of Spain is granted leave to intervene.

8 Article 30 of Regulation 404/93 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 t o overcome difficulties of a sensitive nature, the Commission, acting in accordance with the procedure laid down in Article 27, shall take any transitional measures it judges necessary.'

9 Paragraphs 8 to 15 of the order under appeal state, in substance, that, from 1993, Camar, who is a traditional importer of bananas from Somalia, repeatedly requested the Commission to grant it additional Category B licences, because the quantities of bananas that it had managed to import from Somalia during the years after 1990 and which had been taken into account, as reference quantities, for the purposes of calculating the Category B licences to which it was entitled were abnormally low as compared to the quantities that it had imported during the years 1988 to 1990.

10 For details of the dealings between Camar and the Commission and the actions for declaration of failure to act brought before the Court of First Instance, reference should be made to paragraphs 15 to 20 of the order under appeal.

1 1 O n 17 July 1997, the Commission rejected the request that Camar had submitted on 27 January 1997 pursuant to Article 30 of Regulation N o 404/93 and which concerned the calculation of the Category B licences to be issued to it in 1997 and subsequent years.

12 O n 25 September 1997, Camar brought another action before the Court of First Instance seeking the annulment of the Commission decision and an order requir- ing the Community to pay compensation for the damage suffered by it following the refusal by the Commission to take into account, in calculating Category B licences, the quantities of bananas that it had imported prior to 1991 and, in the alternative, an order that compensation be paid to Camar for the failure to adopt a specific provision within the framework of Regulation N o 404/93 allowing situa- tions 'such as that' of the appellant to be resolved.

16 It is clear from the order under appeal that Camar claimed essentially that it was not of its choosing that its imports of bananas both from Somalia and from other A C P countries had decreased after 1990, causing a reduction in the Category B licences granted to it and thus compelling it also to reduce its imports from third countries. That reduction in its activity had thus forced it to incur debts with its principal shareholder and to halve its staff. According to Camar, that situation would, in due course, force it to close down its business, unless additional Category B licences were granted.

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CAMAR v COMMISSION AND COUNCIL

17 The President of the Court of First Instance examined separately Camar's claims relating to the changes in its turnover and those relating to the changes in its imports.

18 It was noted that Camar's turnover in recent years had risen in 1995 and 1996 and that Camar had made a profit in 1994 and 1995. As to the financial difficulties alleged by the appellant, it is clear from the order under appeal, first, that those difficulties were not substantiated by any evidence and, secondly, the fact that Camar had had to seek financial assistance in order to survive held, in any event, little relevance for the assessment of the appellant's economic circumstances and specific operational possibilities, since such assistance constituted a purely internal operation within the group to which it belonged.

19 As to the volume of banana imports effected by the appellant, it is clear from the order under appeal that, while Camar's business underwent a contraction in 1993, its imports none the less showed an improvement in 1995 and 1996 and reached 20 000 tonnes in 1997 (27 000 tonnes if imports of another undertaking belonging to the same group as Camar are included). It was also found that the reduction in imports during 1991 and the following years was partly explained by the loss of competitiveness of Somali bananas and that the increase in transport costs alleged by Camar had not been proved.

23 In the first part, the appellant complains essentially about the way in which the judge hearing the application assessed its material circumstances in order to evalu- ate the urgency of its request. In the second part, it claims that the judge should himself have directly applied Article 30 of Regulation N o 404/93, under which the conditions of urgency are less strict, instead of referring to the conditions for the application of Article 186 of the Treaty.

24 As to the first part of the plea, the appellant claims more specifically that the judge hearing the application did not confine himself, as he should have done, to taking into account the enormous contraction in the volume of its imports from third countries as a Category B importer, which occurred in 1997 because of an abnor- mal reference period, but also took into account all its other imports effected in the same year.

25 It is further claimed that the judge hearing the application was also wrong to take account of the imports of another company belonging to the same group as Camar. In this respect, the appellant refers to two judgments of the Corte di Cassazione (Italian Court of Cassation) which it considers relevant since this case concerns companies governed by Italian law and from which it appears that the fact that joint stock companies have common shareholders does not preclude separate legal personalities and distinct company articles.

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CAMAR v COMMISSION AND COUNCIL

29 Secondly, the parties are concerned to refute the appellant's argument that the judge hearing the application should have directly applied Article 30 of Regulation N o 404/93. According to the Commission and the Council, the T. Port judgment did not change the conditions of application of Article 186 of the Treaty in the light of Article 30 of Regulation N o 404/93. The Council adds that, if the appel- lant's argument were accepted, the admission of a prima facie case would auto- matically result in an admission of urgency.

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30 The Council and the Kingdom of Spain also consider that, by applying Article 30 of Regulation N o 404/93, the judge hearing the application would not be granting interim measures, but would be prejudging the main action. The Kingdom of Spain is furthermore of the view that such action by the judge would encroach upon the powers of the Commission under Article 30 of Regulation N o 404/93, since the Commission enjoys broad discretion.

31 The Commission adds finally that, even if the judge hearing the application was obliged to apply Article 30 of Regulation N o 404/93, it would be necessary to find that the conditions for the application of that provision were not in any case ful- filled.

32 Since the parties' written observations in this case provide sufficient information to decide the appeal, there is no need to hear oral argument.

36 As regards the serious and irreparable nature of the damage alleged, the assessment in the order under appeal of the material circumstances of Camar correctly took into consideration the characteristics of the group to which the appellant was linked by way of its shareholders (see the order of the President of the Court of Justice in Case C-12/95 P Transacciones Marítimas and Others v Commission [1995] ECR I-467, paragraph 12, and of the President of the Court of First Instance in Case T-18/96 R SCK and FNK vCommission [1996] ECR II-407, para- graph 35).

37 As to the argument founded on the case-law of the Corte di Cassazione, it is suf- ficient to state that it is clear from the passages cited by the appellant that those cases concern questions on the law governing liability and the law of bankruptcy which are in any event irrelevant in the context of the assessment of the urgency of the interim measures requested.

38 The second part of the plea put forward in support of the appeal, relating t o Article 30 of Regulation N o 404/93 and the T. Port case, does not establish any error of law in the order under appeal.

39 Indeed, it is apparent from paragraph 55 of the order that the application for interim measures was dismissed on the ground of lack of urgency of the measures sought, without any consideration of whether the main action, relating to the con- ditions of application of Article 30 of Regulation N o 404/93, appeared prima facie well founded.

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45 The appellant's argument must thus be rejected in so far as it would lead the judge hearing the application to do more than adopt only the measures necessary to ensure that the final decision subsequently to be given in the main action will be fully effective.

46 Finally, the appellant's argument that the damage pleaded would be by definition irreparable 'since it is connected with the field of fundamental freedoms' cannot be accepted.

47 It is not sufficient to allege infringement of fundamental rights, in this case the right to property and the right to pursue a professional or trade activity, in the abstract, for the purposes of establishing that the harm which could result would necessarily be irreparable.

48 It follows from all the considerations set out above that the appeal must be dis- missed.

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

hereby orders:

1. The appeal is dismissed.

2. Camar Srl shall bear the costs.

3. The French Republic and the Kingdom of Spain are to bear their own costs.

Luxembourg, 15 April 1998.