C-213/01

3. The legal background to the case can be described as follows. 6 2. It will be remembered that in 1995 the Finanzgericht (Finance Court) Hamburg (Germany) had expressed doubts regarding the validity of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in 4. Regulation No 404/93 introduced com- bananas. 4 Ruling in proceedings for mon arrangements for the importation of interim relief, that court had provisionally bananas, which replaced the various disapplied Regulation No 404/93 and national arrangements. A distinction was referred several questions to this Court for drawn between 'Community bananas' pro- a preliminary ruling. By way of interim duced in the Community, 'third-country measures, it had also authorised T. Port bananas' originating in third countries GmbH & Co. KG to import a certain other than the African, Caribbean and quantity of bananas into the European Pacific (ACP) States, 'traditional ACP Community. The question which now b a n a n a s ' and 'non-traditional ACP arises is whether that quantity of bananas, bananas'. 'Traditional ACP bananas' and which was fixed provisionally by the 'non-traditional ACP bananas' meant the national court, can be taken into account quantities of bananas exported by the ACP

1 — Original language: French. 5 — Regulation of 28 October 1998 laying down detailed rules for the implementation of Council Regulation No 404/93 2 — [2001] ECR II-981 (the 'judgment under appeal'). regarding imports of bananas into the Community (OJ 1998 3 — 11998] ECR I-1023. L 293, p. 32). 4 — OJ 1993 L 47, p. 1. 6 — See judgment under appeal (paragraphs 1 to 11).

7. The first sentence of Article 19(2) of 10. Under the new arrangements for Regulation No 404/93 reads as follows: banana imports, the allocation of the quota between three different categories of oper- ators was abolished. Regulation No 2362/98 provided that the quotas were to be divided merely between 'traditional operators' and 'newcomers'. 'On the basis of separate calculations for each of the categories of operators referred to in paragraph 1... each operator shall 7 — OJ 1998 L 210, p. 28.

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11. Article 4 of Regulation No 2362/98 (b) the supporting documents detailed in reads as follows: paragraph 3.

' 1 . Each traditional operator registered in a Member State... shall receive, for each year 3. Actual imports shall be attested by both and for all the origins listed in Annex I, a of the following: single reference quantity based on the quantities of bananas actually imported during the reference period.

(a) by presenting copies of the import licences used... by the holder... in order to release the relevant quantities for 2. For imports carried out in 1999 under free circulation; and the tariff quotas or as traditional ACP bananas, the reference period shall be made up of the years 1994, 1995 and 1996.'

15. Thus, by four interim orders issued between 19 May and 28 June 1995 the 17. The appellant then made fresh appli- Finanzgericht Hamburg ordered the cations for interim relief to the Finanzger- Hauptzollamt (Principal Customs Office) icht Hamburg. By orders of 22 and Hamburg-Jonas to grant customs clearance 27 September 1995 that court suspended for a certain quantity of bananas bought by the operation of the decisions of the the appellant in Ecuador. The Finanzger- Hauptzollamt Hamburg-Jonas without icht Hamburg considered that Regulations requiring a security to be furnished. For Nos 404/93 and (EEC) 478/95 8 infringed the same reasons as those given in its first certain of the rules of the General Agree- orders, the Finanzgericht Hamburg once ment on Tariffs and Trade (GATT). It again referred the same four questions to therefore decided provisionally to disapply this Court for a preliminary ruling as it had those regulations and to refer four ques- previously. 10 tions to the Court for a preliminary rul- ing. 9 By virtue of those interim orders the appellant was authorised to import a quantity of 9 860 571 kg of bananas under the tariff quota, without an import licence and on payment of the quota duties of ECU 18. When its reference quantity was estab- 75 per tonne. lished for 1999 the appellant asked for the quantity of bananas it had imported under the interim orders of the Finanzgericht Hamburg to be taken into account. After consulting the Commission departments, the German authorities refused to grant its 16. By judgment of 22 August 1995 the request, however. Bundesfinanzhof (Federal Finance Court) (Germany) set aside the four orders of the Finanzgericht Hamburg. On the basis of that judgment the Hauptzollamt Hamburg- Jonas, by decisions of 29 August and 1 September 1995, fixed the customs duty 19. It was in those circumstances that the appellant, by application lodged at the Registry of the Court of First Instance on 8 — Commission Regulation of 1 March 1995 on additional rules for the application of Council Regulation (EEC) 19 February 1999, brought an action under No 404/93 as regards the tariff quota arrangements for Article 178 and the second paragraph of imports of bananas into the Community and amending Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13). 9 — Case C-182/95 T. Port, removed from the register by order of 12 March 2001 (not published in the European Court Reports). 10 — Joined Cases C-364/95 and C-365/95 T. Port, cited above.

24. In the present case, the appellant did not meet the first condition. Although the I I I— The judgment under appeal customs debt in respect of the contested quantity was established by the Hauptzol- lamt Hamburg-Jonas, the Finanzgericht Hamburg ordered the suspension of the 21. In the context of the second plea, which payment of that debt without stipulating is the only plea that is relevant in the that a security should be provided. In present case, the appellant contended that addition, the contested quantity was reducing its reference quantity by the con- imported without an import licence and, tested quantity infringed the principle of hence, outside the tariff quota, which equal treatment. 12 meant that the full rate under the common customs tariff applied to it. The Commis-

11 — Otherwise referred to as 'the contested quantity'. 12 — Judgment under appeal (paragraphs 70 to 72). 13 — Ibid, (paragraphs 78 to 80).

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sion concluded that so long as that customs authorities that it would be necessary duty remained unpaid it was not possible to to take that quantity into account if the take the contested quantity into account in abovementioned duties are paid.' calculating the reference quantity.

26. Having rejected the appellant's other pleas, the Court of First Instance concluded that the appellant had failed to establish 25. In the judgment under appeal the Court that any unlawful conduct had occurred of First Instance rejected the appellant's which would cause the Community to incur arguments on the following grounds: non-contractual liability. The Court there- fore dismissed the action for damages.

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29. I shall consider each of those pleas in Instance should therefore have found that turn. payment of the quota duties was sufficient in order for the contested quantity to be included in the reference quantity.

34. It is also not in dispute that, according 14 — Appeal (paragraph 2). to case-law, preliminary rulings of the

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Court of Justice in principle have retro- reason for which the appellant was auth- active effect. As regards preliminary rulings orised to import it under that quota was on interpretation, this Court has ruled that that the Finanzgericht Hamburg enter- the interpretation which it gives to a rule of tained doubts as to whether Regulations Community law clarifies and defines the Nos 404/93 and 478/95 were compatible meaning and scope of that rule as it must be with the GATT rules. The Finanzgericht understood from the time of its entry into Hamburg therefore held that the 'customs force. 15 The rule so interpreted is therefore duties due' in respect of the contested to be applied to legal relationships arising imports should be established at the prefer- and established before the preliminary ential rate of ECU 75 per tonne and not at ruling, provided that the conditions the rate of ECU 850 per tonne. enabling an action to be brought before the national courts are satisfied. The same principle applies to preliminary rulings on validity. In Case C-228/92 Roquette Frères 16 the Court expressly held that 'a judgment of the Court in proceedings for a preliminary ruling declaring a Community act invalid in principle has retroactive 37. In T. Port, cited above, 17 however, this effect'. This is all the more true where the Court did not uphold the finding of the Court finds that consideration of the ques- Finanzgericht Hamburg on that point. In tions referred for a preliminary ruling has response to the questions referred to it by not disclosed any factor that would affect that court, the Court held that the GATT the validity of the contested measure. rules did not apply in that case and so they could not be effectively relied on to pre- clude the application of Regulations Nos 404/93 and 478/95.

39. In that regard, the applicant's argument 42. The appellant complains that the Court amounts to a contention that the effects of of First Instance held that the contested preliminary rulings of the Court of Justice quantity was imported outside the tariff may be restricted by interim measures quota. It argues that in its interim orders ordered by a national court in proceedings the Finanzgericht Hamburg had expressly for interim relief. That argument is mani- authorised those imports within the quota. festly contrary to case-law since the Court According to the appellant the Court of considers that it alone has jurisdiction to First Instance was required to respect the restrict the temporal effects of preliminary decision by the Finanzgericht Hamburg. It rulings. 18 As the Commission has stated, 19 points out that the case-law of the Court of the appellant's argument amounts to a Justice authorises national courts pro- serious attack on the principles of the visionally to disapply a Community meas- primacy and uniform application of Com- ure. The appellant adds that the provisional munity law. legal protection conferred on individuals would be reduced to nothing if the decision of the Finanzgericht Hamburg could be called into question by the Court of First Instance.

40. In those circumstances, I propose the Court should reject the first plea as mani- festly unfounded. 43. Like the Commission, I think that that plea is manifestly unfounded.

44. In Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest 21 and Atlanta B — Second plea Fruchthandelsgesellschaft and Others I, 22 this Court held that national courts had the power to disapply provisionally a Commu- nity regulation the validity of which is contested. National courts may order sus- 41. By its second plea, 20 the appellant pension of the enforcement of a national contends that the Court of First Instance administrative measure adopted on the failed to have regard to the case-law basis of such a regulation or order interim regarding the power of national courts to measures to regulate the legal positions or grant interim relief in cases concerning relationships at issue concerning a national Community law. administrative measure based on such a Community regulation. The Court, how-

47. In those circumstances, the appellant — if, in its assessment of all those con- cannot validly rely on the rights allegedly ditions, the national court respects conferred by the orders of the Finanzgericht decisions of the Court of Justice or Hamburg. 26 Since those orders do not the Court of First Instance ruling on the lawfulness of the regulation, or an 24 — Zuckerfabrik Süderdtthmarschen and Zuckerfabrik Soest interim order granting similar interim (paragraph 30) and Atlanta Fruchthandelsgesellschaft and relief at Community level. Others I (paragraph 42). 25 — Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest (paragraph 32) and Atlanta Fruchthandelsgesellschaft and Others I (paragraph 45). 26 — One might wonder whether that conclusion does not 23 — Zuckerfabrik Süderdtthmarschen and Zuckerfabrik Soest already result merely from the fact that the orders of the (paragraph 33) and Atlanta Fruchthandelsgesellschaft and Finanzgericht Hamburg were set aside by the Bundesfi- Others I (paragraph 51). nanzhof.

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comply with the conditions laid down by 48. I therefore propose that the Court the case-law, they cannot in any way lead should reject the second plea as being to the contested quantity being included in manifestly unfounded. the appellant's reference quantity.

V — Conclusion

49. In the light of the above considerations, I propose that the Court should dismiss the appeal as being manifestly unfounded and order T. Port G m b H & Co. KG to pay the costs of both sets of proceedings.