C-442/99

2 Each year a forecast supply balance is to be drawn up on production and consumption in the Community and of '1 Council Regulation (EEC) No 404/93 imports and exports. The tariff quota of 13 February 1993 on the common determined on the basis of the forecast organisation of the market in bananas supply balance is to be allocated (OJ 1993 L 47, p. 1, "Regulation among operators established in the No 404/93") introduced a common Community according to the origin system for the importation of bananas and the average quantities of bananas which replaced the various national they have sold in the three most recent arrangements. In order to ensure satis- years for which figures are available. factory marketing of bananas produced On the basis of that allocation, import in the Community and of products licences are to be issued which enable operators to import bananas free of customs duties or at preferential rates I — Original language: Fench. of customs duty.

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3 The 22nd recital in the preamble to I I — The facts Regulation No 404/93 is worded as follows:

3. As regards the facts of the case, the Court of First Instance found:

"... the replacement of the various '5 [Cordis] was formed on 1 November national arrangements in operation 1990, that is to say after the reunifica- when this regulation comes into force tion of Germany, and has its registered by this common organisation of the office in the former German Demo- market threatens to disturb the internal cratic Republic ("GDR"). Its business market;... the Commission, as of 1 July is wholesale fruit trading and, inter 1993, should be able to take any alia, the ripening and packaging of transitional measures required to over- bananas. come the difficulties of implementing the new arrangements".

8 According to the applicant, its new ... Cordis has not shown that it was facilities were being used below their unable to obtain sufficient quantities of capacity. It points out in this respect bananas for ripening to enable the that, since the regulation requires ripening plant to operate at full capa- licences to be obtained for the impor- city from other traders or other sources tation of green bananas, the fact that rather than import them itself;... the its suppliers reflected the licence costs common organisation of the market in in the price of the bananas curbed bananas does not prevent it from doing consumption. Consequently, since such so;... Cordis has in fact obtained sig- licences are granted according to the nificant quantities of bananas for quantities of bananas sold, the appli- ripening from other traders or other cant itself was only able to obtain sources without importing them import licences for insufficient quanti- itself;... it has not therefore been shown ties. that any alleged under-utilisation of the ripening plant and any alleged stagna- tion of turnover in the banana sector, loss of customers or staff lay-offs which ensued from this were due to the transition from the provisions existing prior to the entry into force of the 9 Accordingly, on 7 April 1996, the regulation to the common organisation applicant requested the Commission, of the market; under Article 30 of Regulation No 404/93, to grant it additional licences as soon as possible by way of a transitional measure intended to compensate for hardship due to the rules introduced by Regulation No 404/93.

4. It follows from the contested judgment that, by application lodged at the Registry of the Court of First Instance on 29 Decem- ber 1997, Cordis applied for the annulment ... Cordis obtained significant quanti- of the contested decision. By order of 6 July ties of bananas for ripening from 1998, the French Republic was granted Dole;... it obtained ripe bananas in leave to intervene in support of the form of quantities sufficient to meet its custo- order sought by the Commission. mers' requirements;... banana ripening is only one of the many activities pursued by Cordis;... Cordis has there- fore not shown that any alleged reduc- tion of its ripening activities constitu- 5. In support of its application before the ted a difficulty threatening its exis- Court of First Instance, Cordis relied on tence; two pleas in law alleging, first, infringe- ment of Article 30 of Regulation No 404/93 and misuse of powers and, second, infringement of the obligation to state reasons.

in the internal market in consequence 35 It is therefore necessary to consider of the replacement of the various whether the problems encountered by national arrangements by the common the applicant are due to the transition organisation of the market and their to the common organisation of the purpose is to address difficulties market. encountered by traders after establish- ment of the common organisation of the market but originating in the state of national markets prior to the entry into force of Regulation No 404/93 (see the order in [Case C-280/93 R] Germany v Council [[1993] ECR 1-3667], paragraphs 46 and 47; the judgment[s] in [Case C-68/95] T. Port 36 It should be noted in this respect that [[1996] ECR I-6065, paragraph 34; the applicant company was formed on and Joined Cases C-9/95, C-23/95 and 1 November 1990, that is to say after C-156/95 Belgium and Germany v German reunification. It therefore took Commission [1997] ECR I-645, para- the decision in 1991 to expand by graph 22; and the order in [Case building new ripening facilities not T-79/96 R] Camar v Commission unaware of the situation obtaining in [[1977] ECR II-403], paragraph 42). Germany following reunification.

8. Cordis raises two grounds of appeal alleging failure to observe the conditions for the application of Article 30 of Regula- tion No 404/93 and breach of the principle of equal treatment. 39 That argument is unacceptable. Arti- cle 30 of Regulation No 404/93, which must be interpreted restrictively as a derogation from the general provisions applicable, cannot serve to offset the competitive disadvantage suffered by new undertakings in relation to the Failure to observe the conditions for the differences in opportunities available in application of Article 30 of Regulation Germany. That disadvantage is not, No 404/93 after all, due to the establishment of the common organisation of the market.

Arguments of the parties

unforeseeable problems due to the intro- structural difficulties which had arisen for duction of the common organisation of the new undertakings such as the appellant and market in bananas. which had been exacerbated by the estab- lishment of the common organisation of the market in bananas. The appellant's conduct prior to the entry into force of Regulation No 404/93... has absolutely no part to play 10. According to the appellant, Article 30 in this case'. Moreover, the appellant claims of Regulation No 404/93 applies where that the Court of First Instance erred in Community measures are required to assist considering 'that the structural disadvan- the transition from national arrangements tages cited by the appellant were not for bananas to the common organisation of compounded because ripening undertak- the market. The conditions are therefore ings in the former GDR could not them- that the measures assist the transition to the selves import bananas prior to the estab- common organisation of the market and lishment of the common organisation of the that it is necessary to assist that transition. market'.

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import licences under indent (c) of the first traders in question. Secondly, the said subparagraph of Article 3(1) of Commis- measures must be necessary for the purpose sion Regulation (EEC) No 1442/93 of of addressing such difficulties. 10 June 1993 laying down detailed rules for the application of the arrangements for importing bananas into the Community. 3

17. The Commission thus considers that the Court of First Instance correctly inter- preted, in paragraph 34 of the contested judgment, the purpose of Article 30 of Regulation No 404/93. 15. Cordis dwells, in this respect, on the fact that ripening activities are separate from importing activities; the latter were pursued by the State monopoly in the external trade of the German Democratic Republic. The Court of First Instance 18. As regards the appellant's argument probably did not consider indent (c) of that the structural disadvantages connected Article 3(1) of Regulation No 1442/93 with reunification were exacerbated by the when it based its findings on imports and common organisation of the market, the not on the ripening of bananas by ripening Commission points out that the Court of plants. While importing activities and First Instance correctly considered that banana ripening activities can be cotermi- argument in paragraphs 35 to 37 of the nous, it is not necessarily the case. contested judgment.

tion as the appellant. The Commission 24. In the alternative, the French Govern- points out, in this respect, that the common ment points out that it is apparent from T. organisation of the market in no way Port that the purpose of Article 30 of hindered the business of ripening plants Regulation No 404/93 is not to solve all which were able to engage in ripening the problems with which undertakings activities even without individual import trading in bananas may be faced. Article 30 licences. Only those that wish themselves to deals with cases of extreme hardship threa- import bananas and then ripen them tening the foundation of the traders con- require licences. Cordis admits that it was cerned, which stem from the entry into impossible to import bananas prior to the force of the common organisation of the introduction of the common organisation market. of the market, so that its position did not deteriorate thereafter. Furthermore, thanks to the common organisation of the market, ripening plants have been able to constitute their own reference quantities as regards 25. The French Government also observes third-country or non-traditional ACP bana- that Article 30 of Regulation No 404/93 nas ripened in their facilities (indent (c) of requires a case-by-case appraisal of the the first subparagraph of Article 3(1) and situation of those traders seeking its appli- the second subparagraph of Article 5(1) of cation, and cannot justify collective treat- Regulation No 1442/93). ment of undertakings which have some- thing in common, inter alia their geogra- phical origin. Further, such a collective approach would be contrary to Article 230 EC which requires that the applicant be an 21. The Commission proposes that the first addressee of the contested Community act ground of appeal be rejected either as or that he be directly and individually unfounded or as inadmissible. concerned by that act. Moreover, this approach would be harmful to legal cer- tainty since it would affect Regulation No 404/93.

27. In my view, the validity of such an 30. The appellant's argument thus amounts examination cannot be disputed in the light to disputing an appraisal of the facts by the of Article 30 of Regulation No 404/93. Court of First Instance. Indeed, as the Court of Justice pointed out in T. Port, '[a]pplication of Article 30 is subject to the condition that the specific measures which the Commission must adopt are intended to assist transition from national arrangements to the common 31. However, as the French Government organisation of the market and that they points out, an appeal is limited to points of are necessary for that purpose'. 5 If the law. Thus, according to settled case-law, purpose of Article 30 is to 'assist transi- '[t]he Court of First Instance has exclusive tion', it is, in my opinion, implied that it jurisdiction to find the facts, save where a applies where this transition creates diffi- substantive inaccuracy in its findings is culties. Consequently, both the wording of attributable to the documents submitted to Article 30 and its rationale in the context it, and to appraise those facts. That apprai- of Regulation No 404/93 support the con- sal thus does not, save where the clear sense clusion that that provision serves only to of the evidence has been distorted, consti- address problems due to transition to the tute a point of law which is subject, as such, common organisation of the market and to review by the Court of Justice'. 6 not problems with a different cause.

evidence capable of demonstrating that the of 'State-owned undertaking' ('Volkseige- Court of First Instance distorted the facts. ner Betrieb'). On the contrary, it must be considered that what the appellant describes as a difficulty has no connection with the transition to the common organisation of the market. 38. Secondly, nor has Cordis taken on the technical facilities of such a ripening plant. Indeed, it is apparent from its application before the Court of First Instance that it simply recruited some of the staff of a 34. As I pointed out above, the appellant former agricultural production cooperative puts much emphasis on the fact that it is which had no activities in the banana not citing a problem which is specific to sector. itself, but a case of collective hardship. It is faced with a 'structural difficulty' common to all undertakings established in the new Länder, due to the fact that it was not able to engage in ripening activities during the reference period under Regulation 39. In actual fact, the appellant's reasoning No 404/93, namely during 1989 and 1990. is as follows.

40. Had the Cordis company existed in 35. At the hearing, Cordis stated that the 1989, it would have ripened bananas. crux of the problem lay in the fact that it Therefore, it could today refer to the had been treated like any other new quantities of bananas marketed in 1989 ripening undertaking which had com- and in 1990 in order to request licenses. menced its activities, anywhere in Ger- However, the political regime in the Ger- many, on 1 November 1990. man Democratic Republic prevented the company from existing at that time. The Commission, consequently, should have started from the premiss that the company could have existed and it should have granted it a reference quantity of 5 000 36. There is however no doubt that Cordis tonnes of bananas. is indeed in that situation.

42. This however in no way proves that in the absence of that regime, Cordis would have existed as such, that it would have already had its current ripening capacity and that it would have been in a position fully to exploit that capacity. Since the 'structural difficulty' cited by the appellant 45. Under this second ground of appeal, is thus not proved, it follows, a fortiori, Cordis puts forward essentially the same that the exacerbation of that difficulty by arguments as under the first. According to the transition to the common organisation the appellant, the contested judgment is in of the market is not proved either. breach of the principle of equal treatment, which prohibits not only similar situations from being treated differently, but also different situations from being treated equally. Cordis points out, in this respect, that the new undertakings established in 43. In conclusion, as regards the first the former German Democratic Republic ground of appeal, I consider therefore that were all in the same situation: because of the Court of First Instance correctly applied the division of Germany and the political Article 30 of Regulation No 404/93 in and legal situation in the German Demo- examining whether the problems relied on cratic Republic during 1989 and 1990, they by the appellant were due to the transition alone were not able to engage in the to the common organisation of the market. ripening activities which serve as a refer- Furthermore, the conclusion of the Court ence. The principle of equal treatment of First Instance that those problems were requires that the Community institutions not due to the transition to the common take those exceptional circumstances into organisation of the market constitutes an account. Even then, if the Commission did appraisal of the facts which falls outside the not wish to take this particular case into context of this appeal. In any event, it has account in the context of Regulation become clear that the appellant's entire No 1442/93, it was bound at least to adopt reasoning based on so-called structural a transitional measure under Article 30 of difficulties is not convincing. Regulation No 404/93. If the Commission had adopted such a measure necessary to safeguard the fundamental rights of new undertakings, the transition of new under- takings to the situation resulting from the common organisation of the market would 44. I therefore suggest that the appellant's have been facilitated and the purpose of first ground of appeal be rejected. Article 30 achieved.

Analysis

52. So far as may be relevant, I reiterate that the finding of the Court of First Instance that the disadvantage cited by

49. It should be recalled, as has Cordis, that the Court has held that '[t]he Com- 8 — 7'. Port, paragraph 40.

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Cordis is not due to the transition to the less favourable manner than any other common organisation of the market con- ripening undertaking established elsewhere stitutes an appraisal of the facts which falls in the Community at the same time. outside the context of this appeal.

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