EuG · T-230/97

BIB.ORDERT-230/97 R61997B02300011.000115911160818TORDER OF 1. 10. 1997 — CASE T-230/97 R COMAFRICA AND DOLE FRESH FRUIT EUROPE v COMMISSION Order of the President of the Court of 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, applicants, vCommission of the European Communities, represented by Xavier Lewis and James Macdonald Flett, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg, defendant, supported by French Republic, represented by Marc Perrin de Brichambaut, acting as Agent, with an address for service in Luxembourg at the French Embassy, 8B Boulevard Joseph II, intervener, APPLICATION under Articles 185 and 186 of the EC Treaty for (i) an order suspending the operation of Commission Regulation (EC) No 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 applicants, 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 purposes of granting interim relief to the applicants, THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES makes the following Order Legal background 1A common organization of the market in bananas was established by Council Regulation (EEC) No 404/93 of 13 February 1993 (OJ 1993 L 47, p. 1, hereinafter ‘Regulation No 404/93’), as last amended by Council Regulation (EC) No 3290/94 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). Regulation No 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. 2Title IV of Regulation No 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 nontraditional bananas produced in the countries with which the Community has concluded the Lomé Convention (hereinafter ‘ACP bananas’). The terms ‘traditional imports’ and ‘nontraditional imports’ of ACP bananas are defined in Article 15a of Regulation No 404/93. ‘Traditional imports’ from ACP States means the quantities, listed in an annex to Regulation No 404/93, of bananas exported to the Community by each ACP State which has traditionally exported bananas to the Community. Quantities of bananas exported by ACP States in excess of the figures set out in the annex are designated ‘nontraditional ACP bananas’. 3The first subparagraph of Article 18(1) of Regulation No 404/93 provided for the opening each year of a tariff quota of 2100000 tonnes (net weight) for 1994 and of 2200000 tonnes (net weight) for the following years for imports of third-country bananas and nontraditional ACP bananas. However, the fourth subparagraph of Article 18(1) and Article 30 of Regulation No 404/93 provided that, where Community 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 2553000 tonnes by Commission Regulation (EC) No 1154/97 of 25 June 1997 (OJ 1997 L 168, p. 65), with a reserve of 10000 tonnes to allow for the adoption of specific measures. 4Within the framework of the tariff quota, imports of third-country bananas are subject to a levy of ECU 75 per tonne and imports of nontraditional ACP bananas are subject to a zero duty (second subparagraph of Article 18(1) of Regulation No 404/93). Other than within the tariff quota, such imports bear customs duty calculated on the basis of the Common Customs Tariff (Article 18(2) of Regulation No 404/93). 5The detailed rules for the implementation of Title IV of Regulation No 404/93 were established by Commission Regulation (EEC) No 1442/93 of 10 June 1993 laying down detailed rules for the application of the arrangements for importing bananas into the Community (OJ 1993 L 142, p. 6, hereinafter ‘Regulation No 1442/93’), as last amended by Regulation (EC) No 1409/96 of 19 July 1996. Under Article 2 of Regulation No 1442/93 a distinction is made between those operators who, prior to 1992, had marketed third-country bananas and/or nontraditional 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 No 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 ACP 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 Community’. 6Article 5 of Regulation No 1442/93 provides that the competent authorities of the Member States are to establish each year, by 1 July, for each Category A and Category B operator registered with them the average quantities marketed during the three years prior to the year preceding that for which the quota is opened, broken down by economic activity in accordance with Article 3 of that regulation (Article 5(1) and (2)). They are to notify the Commission of the total weighted reference quantities and the total quantities of bananas marketed in respect of each activity (Article 5(3)). This average is termed ‘the reference quantity’. Article 6 of Regulation No 1442/93 is worded as follows: ‘Depending on the annual tariff quota and the total reference quantities of operators as referred to in Article 5, the Commission shall fix, where appropriate, a single reduction coefficient for each category of operators to be applied to operators’ reference quantities to determine the quantity to be allocated to each. The Member States shall determine the quantities for each operator in categories A and/or B registered with them and shall notify the latter thereof individually at the latest by 1 November'. 7On the basis of, in particular, those provisions, the Commission adopted Regulation (EC) No 2035/96 of 24 October 1996 fixing the single reduction coefficient for the determination of the provisional quantity of bananas to be allocated to each operator in Categories A and B from the tariff quota for 1997 (OJ 1996 L 272, p. 6, hereinafter ‘Regulation No 2035/96’). That regulation has been challenged in an action brought by the applicants in Case T-6/97 accompanied by a claim for interim measures. By order of 3 March 1997 in Case T-6/97 R Comafrica and Dole v Commission [1997] ECR 1II-291, the President of the Court dismissed the application for interim measures. 8Regulation No 2035/96 was repealed by Commission Regulation (EC) No 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, hereinafter ‘Regulation No 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, determined in accordance with Article 5 of Regulation (EEC) No 1442/93, the following single reduction coefficients: — for each Category A operator: 0.732550 — for each Category B operator: 0.540459.’ 9The 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. Facts and procedure 10The applicants, Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co., are members of the Dole group and are registered as Category A operators in Italy and Germany respectively. 11By application lodged at the Court Registry on 5 August 1997, they brought an action seeking annulment by the Court of Regulation No 1155/97 in so far as it affects them or, alternatively, its annulment erga omnes, an order requiring the Commission to pay them compensation for the damage allegedly caused to them by the wrongful adoption of that regulation together with interest thereon and, finally, any additional orders which the Court considers necessary. 12By 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 No 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. 13The Commission submitted its written observations in a document lodged at the Court Registry on 19 August 1997. 14By document lodged at the Court Registry on 11 August 1997, the French Republic 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 Commission and the applicants stated that they did not oppose the application for leave to intervene. 15By 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 confidentially 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. 16Having regard to all the evidence and documents before him, the President considered that he had all the information necessary for ruling on this application for interim measures without any need to hear beforehand the oral arguments of the parties. Law The application for leave to intervene 17The French Government's application having been introduced 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 Protocol on the Statute (EC) of the Court of Justice, applicable to the procedure before the Court of First Instance by virtue of the first paragraph of Article 46, it should be allowed to intervene in these interim proceedings in support of the form of order sought by the defendant. The application for confidential treatment 18Having regard to the nature of the information for which confidential treatment is sought, it appears justified, at the stage of the interim proceedings, to grant the applicant's request since such information may prima facie contain business secrets. The application for interim measures 19Under 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, EEC of 8 June 1993 (OJ 1993 L 144, p. 21), by Council Decision 94/149/ECSC, EC of 7 March 1994 (OJ 1994 L 66, 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 circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures. 20Article 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 proceedings 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 admissible only if it relates to the main proceedings before the Court of First Instance. 21As regards their content, Article 104(2) 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 the order of the President of the Court of First Instance of 21 March 1997 in Case T-79/96 R CAM AR v Commission [1997] ECR II-403, paragraph 21). 22This application is for suspension of operation of the contested regulation and for any additional interim measures considered necessary. In ruling upon such an application, it is necessary to consider first of all the applicants' arguments concerning the risk of harm if the interim measures sought are not granted. Risk of harm if the interim measures sought are not granted Arguments of the parties 23According to the applicants, the urgency justifying grant of their application for interim measures resides essentially in the risk that they will receive a reduced number of import licences for 1997 and therefore be entitled to import fewer third-country bananas and nontraditional ACP 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 provisional reduction coefficient for 1997 and then belatedly adopted, on 25 June 1997, by Regulation No 1155/97, the definitive reduction coefficient for 1997: since the adverse effects of that latter regulation will begin to be felt in the fourth quarter 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. 24The applicants are also afraid that, if they do not manage to market the quantity of bananas which they consider they are entitled to market in 1997, they will be penalized in future marketing years, which will take 1997 as the reference year. According to the applicants, ‘the difference between the licence used figures for actual imports and the reference quantities for the reference period 1993-1995’ is already 14.8%. If the interim measures sought are not granted, there will be a ‘gradual erosion over time of the applicants' import rights’ until such time ‘as their licence right is extinguished’. The applicants explain that, if the licences issued for any one year are less than what they should be, an operator will, over time, lose all future rights, because the quota shares which will be allocated to him in future will depend on the scale of his previous marketing activity. Consequently, ‘if each year there are over-applications of around 14.8%, the applicants will see their Učence entitlement decline by an average 14.8% a year, in the future, until such time as their licence right is extinguished.’ 25As regards the irreparable nature of the damage allegedly suffered, the applicants argue that ‘it is difficult, if not impossible, to rectify the reference quantities (by artificially attributing a higher reference quantity) for a reference year once the year has passed.’ Furthermore, should the applicants' main application be successful, compensation in the form of damages will not be sufficient ‘as a significant 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 reestablish’. 26The applicants state that they have been able to ‘recoup’ some of the ‘lost’ Category 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 Organization (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 WTO 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. 27The Commission points out first of all that the applicants have not produced any evidence showing that the alleged damage is serious and irreparable. The application for interim measures does not therefore satisfy the requirements of Article 44(1 )(e) of the Rules of Procedure of the Court, applicable in this case by virtue of Article 104(3) of those rules, and for that reason must be dismissed. 28Secondly, the Commission points out that in his order of 3 March 1997 in Case T-6/97 R Comafrica and Dole v Commission, cited above, the President of the Court has already in a similar case ruled out the existence of serious and irreparable damage to the applicants. In the present case, there is nothing in the application for interim measures which might lead the Court to reach a different conclusion. Moreover, the Commission considers that this application is itself contradictory on the question of urgency: if, as the applicants claim, any advantage that might accrue to them in relation to the current marketing year can be quantified in financial terms, then any equivalent harm should be reparable, given the existence of a reserve quantity of 10000 tonnes within the tariff quota, provided for by Regulation No 1155/97 to deal with any possible hardship claims; if, on the other hand, ‘the gain is not quantifiable, granting the interim measures sought would clearly prejudge the main application.’ 29The Commission also states that the acquisition of Category B licences is not as uncertain as the applicants maintain because most of these licences are allocated to them without them troubling themselves to buy them. Moreover, any reference to the dispute before the WTO regarding the Community banana regime is irrelevant because it is clear that the final ruling of that body has no direct effect in the Community legal order and will leave open the possibility for payment of compensation by the Commission rather than modification of the existing system. Findings of the President 30The 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 No 1442/93, of the reduction coefficient fixed by Regulation No 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. 31However, even if the application of the reduction coefficient laid down in Regulation No 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. 32It has been consistently held that damage of a purely financial nature cannot in principle be regarded as irreparable, or even as being reparable only with difficulty, if it can ultimately be the subject of financial compensation (see, in particular, the order of the President of the Court of 7 July 1994 in Case T-185/94 R Geotronics v Commission [1994] ECR II-519, paragraph 22, and his order of 24 February 1995 in Case T-2/95 R Industrie des Poudres Sphériques v Council [1995] ECR II-485, paragraph 28). 33It is accepted that, in proceeding from the provisional regime established by Regulation No 2035/96 — to which the application for interim relief lodged by the same applicants in Case T-6/97 R (see paragraph 7 above) related — to the definitive regime introduced by Regulation No 1155/97 which is now being challenged, the Commission altered the single reduction coefficient for Category A operators, which went from 0.601248 to 0.732550. It is not disputed that this change benefits the applicants since it is closer to the reduction coefficient figure of 0.861645 calculated by the applicants themselves in Case T-6/97 R (see the order of 3 March 1997 in Comafrica and Dole v Commission, cited above, paragraph 45). 34In 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 reduction 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 applicants claim they will wrongly have to suffer during the current marketing year, amounting to approximately 11%, 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 Commission [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). 35Nor are the other losses which the applicants claim might occur in the future, as a result of the determination, by Regulation No 1155/97, of incorrect reference quantities for 1997, serious and irreparable. Those losses allegedly consist of an erosion of their import rights as a result of the reduction of the number of licences which they will be granted in 1997. Even if the applicants' argument that there is a difference of around 14.8% between the reduction coefficient calculated by the Commission and that calculated by the applicants using figures which they consider to be correct is accepted, the assertion that this same difference will occur again in future marketing years is based on pure hypothesis since the applicants do not produce any evidence in this regard. Moreover, on the assumption that the difference of 14.8% complained of by the applicants will remain constant in future, the resultant gradual impairment of their import rights would not produce significantly dangerous effects for them until after a certain period of time. It is clear from the applicants' own calculations set out in Annex 5 to their application for interim measures (‘Erosion of Licence Rights over time’) that, if one takes 1997 as a starting point, it will not be until the year 2000 — by which time, on a reasonable 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 76500 to 64684). 36It 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, including the allocation of some provisional licences (judgment in Case C-68/95 T. Port v Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I-6065, paragraph 60), it is evident that this course must be limited to exceptional cases (ibid., paragraphs 57 and 58), of which it has not been established that the present case is one. 37Moreover, it must be pointed out that, contrary to what the applicants assert, it would be contrary to the principles underlying the legislation in this field if the reference quantities taken into consideration to calculate any reduction coefficients necessary for future years (Articles 5 and 6 of Regulation No 1442/93) were not those taken by the Commission as its basis for fixing the definitive reduction coefficient (see the order in Comafrica and Dole v Commission, cited above, paragraph 50). In the present case, therefore, to grant the applicants' requests that, before the definitive reduction coefficient is fixed for the current marketing year and until judgment is given on the main application, operation of Regulation No 1155/97 be suspended and that a coefficient be fixed so as to make it possible to issue them with the number of import licences to which they consider themselves entitled would encroach on the Commission's powers to establish such a coefficient (see the order of the President of the Court of Justice of 17 December 1986 in Case 294/86 R Technointorg v Commission [1986] ECR 3979, paragraph 25). Upholding the interim application would, furthermore, entail the adoption of measures which would not be provisional but which would produce effects identical to those sought by the main application, since they would merely anticipate what would ensue from annulment of Regulation No 1155/97. Under Article 107(4) of the Rules of Procedure, the measures which may be ordered in interlocutory proceedings must be interim measures, in the sense that they must in principle cease to produce their effects once final judgment is given in the case and must not in any way anticipate the decision of the Court on the substance. Secondly, those measures 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 proceedings 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 I-2557, paragraphs 23 and 24). 38In any event, the President considers that the damage alleged by the applicants is reparable. Any reduction in banana imports for 1997 would constitute an economic 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). 39The applicants contend that their reduced access to the Community market is likely to jeopardize the relationships of confidence which they enjoy with the banana distribution chains which require regular supplies of large quantities of high-quality products. That argument cannot be accepted as substantiating the irreparable nature of the alleged damage. If there is a risk of a breach of confidence between the applicants and the supermarket chains which purchase most of the bananas imported into the Community, it is clear from their application for interim measures (paragraphs 70 to 72) that this risk should have materialized earlier, in the period 1993-1995, in which the Commission set a reduction coefficient based on figures which the applicants consider were wrong then. If from the year 1993 until now the relationship of confidence with the Community supermarket chains has not been broken, it is reasonable to presume that it will continue to exist for an equivalent period, when judgment in the main proceedings will probably have been given. In any case, the applicants acknowledge that they are able to offset the reduction in the number of Category A licences by purchasing Category B licences offered by Community operators not using them. No evidence has been produced to show that such purchases will not be possible in the future. 40As regards the arguments relating to the dispute before the World Trade Organization (WTO) regarding the Community regime governing imports of bananas, the President considers that these are irrelevant in the present case because any final ruling by the WTO will leave open the possibility for the Community to pay compensation or will entail modification of the system now in force, which does not rule out that the applicants could derive advantages in future marketing years. 41Since the applicants have not duly supported their application for interim measures by demonstrating the risk of harm if those measures are not granted, that application 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. On those grounds, THE PRESIDENT OF THE COURT OF 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 information submitted to the Court; 3.Orders non-confidential copies of the file documents to be sent to the French Government; 4.Dismisses the application for interim measures; 5.Reserves the costs. Luxembourg, 1 October 1997. H. Jung Registrar A. Saggio President (*)Language of the case: English.