Order of the Court of 5 February 1997. – Unifruit Hellas EPE v Commission of the European Communities.

BIB.ORDER

C-51/95 P61995O00510003.0001730174314CJ

ORDER OF 5. 2. 1997 — CASE C-51/95 P

UNIFRUIT HELLAS v COMMISSION

Order of the Court (Second Chamber)

5 February 1997^(*)

In Case C-51/95 P,

Unifruit Hellas EPE, a company governed by Greek law, established in Athens, represented by Ilias Soufleros, of the Athens Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 15 December 1994 in Case T-489/93 Unifruit Hellas v Commission [1994] ECR II-1201, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by Xenophon Yataganas, Legal Adviser, and Theofanis Christoforou, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the orfice of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

THE COURT (Second Chamber),

composed of: G. F. Mancini, President of the Chamber, G. Hirsch (Rapporteur) and R. Schintgen, Judges,

Advocate General: A. La Pergola,

Registrar: R. Grass,

after hearing the Opinion of the Advocate General,

makes the following

Order

1By application lodged at the Court Registry on 25 February 1995, Unifruit Hellas brought an appeal against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 15 December 1994 in Case T-489/93 Unifruit Hellas v Commission [1994] ECR II-1201 (‘the judgment under appeal’), to the extent that it dismissed as unfounded the application for damages under the second paragraph of Article 215 of the EEC Treaty in respect of the loss incurred as a result of the alleged illegality of certain provisions of Commission Regulation (EEC) No 846/93 of 7 April 1993 introducing a countervailing charge on apples originating in Chile (OJ 1993 L 88, p. 30) and Commission Regulations (EEC) No 915/93 of 19 April 1993 (OJ 1993 L 94, p. 26), No 1396/93 of 7 June 1993 (OJ 1993 L 137, p. 9) and No 1467/93 of 15 June 1993 (OJ 1993 L 144, p. 11), all amending Regulation No 846/93, inasmuch as they introduced a countervailing charge.

2The legislative and factual background to the dispute is set out in the judgment under appeal as follows:

‘1.This dispute falls within the legal framework set up by Regulation (EEC) No 1035/72 of the Council of 18 May 1972 on the common organization of the market in fruit and vegetables (OJ, English Special Edition 1972 (II), p. 437, subsequently amended on several occasions) and relates in particular to the instruments of protection provided for in that regulation for trade with non-member countries, namely countervailing charges and protective measures.
2.The purpose of a countervailing charge is to protect a certain level of prices for fruit and vegetables on the Community market. To that end, Article 23 of Regulation No 1035/72 provides that a reference price is to be fixed each year for each product covered by the common organization of the market in fruit and vegetables “in order to obviate disturbances caused by offers from third countries at abnormal prices”. Article 25(1) of Regulation No 1035/72 provides: “If the entry price of a product imported from a third country remains at least 0.60 ECU below the reference price for two consecutive market days, a countervailing charge shall be introduced in respect of the exporting country concerned, save in exceptional circumstances. This charge shall be equal to the difference between the reference price and the arithmetic mean of the last two entry prices available for that exporting country (hereinafter called the ‘average entry price’). This average entry price shall then be calculated each market day for each exporting country until, in respect of that exporting country, the charge is withdrawn.” The entry price referred to in that provision is, under Article 24(3) of the same regulation, the market price for products imported from non-member countries, calculated on the basis of the average of the lowest representative prices recorded for at least 30% of the quantities concerned which are marketed on all representative markets.
3.The countervailing charge, which is the same for all Member States, is levied in addition to the customs duties in force (Article 25(3) of Regulation No 1035/72). Changes in the items used to calculate it are not to be taken into account “unless they result in a change over three successive market days of more than 1.2 ECU” and it is withdrawn if the entry price has been at least equal to the reference price for two consecutive market days (Article 26(1) of Regulation No 1035/72).
4.As regards protective measures, under the first indent of Article 29(1) of Regulation No 1035/72, “appropriate measures may be applied in trade with third countries if: — by reason of imports or exports, the Community market in [a product] experiences or is threatened with serious disturbances which may endanger the objectives set out in Article 39 of the Treaty.” The second indent of Article 29(1) allows recourse to protective measures — for, inter alia, apples — if “the withdrawal or buying-in operations ... concern significant quantities”. Article 3(1) of Regulation (EEC) No 2707/72 of the Council of 19 December 1972 laying down the conditions for applying protective measures for fruit and vegetables (OJ, English Special Edition 1972 (28-30 December), p. 3) provides that protective measures may include the suspension of imports or exports or the levying of export taxes. In the case referred to in the second indent of Article 29(1) of Regulation No 1035/72, those measures may include “the suspension of imports or the levying of an additional amount equal to 50% of the difference between the basic price and [a ceiling set for the withdrawal price]. This additional amount shall be added to the customs duties and to the countervailing charges, if any, which may have been introduced pursuant to Article 25 of Regulation (EEC) No 1035/72.”
5.Finally, Article 3(3) of Regulation No 2707/72 provides that protective measures “shall take account of the special position of products in transit to the Community. They shall apply only to products exported from, or intended for, third countries. They may be limited to products exported from, originating in or intended for certain countries, or to certain qualities, size grades or groups.”
6.On 19 February 1993, the Commission adopted Regulation (EEC) No 384/93 introducing special surveillance of imports of apples from third countries (OJ 1993 L 43, p. 33). That regulation is based on Article 29 of Regulation No 1035/72. Under Article 1 of Regulation No 384/93, the release of apples before 1 September 1993 for free circulation within the Community is to be subject to the presentation of an import licence. Article 2(1) of the same regulation provides that the import licence is to be issued subject to the lodging of a security of ECU 1.5 per 100 kg net and that the security is to be forfeit in whole or in part if, during the period of validity of the licence, the quantities stated in the licence are not released for free circulation or are released for circulation in part only.
7.On 7 April 1993, the Commission adopted Regulation (EEC) No 846/93 introducing a countervailing charge on apples originating in Chile (OJ 1993 L 88, p. 30). That regulation, which refers explicitly to Article 25(1) of Regulation No 1035/72, fixed the charge at ECU 1.84 per 100 kg net. It entered into force on 9 April 1993.
8.That countervailing charge was amended by, inter alia, Commission Regulations (EEC) No 915/93 of 19 April 1993 (OJ 1993 L 94, p. 26), No 1396/93 of 7 June 1993 (OJ 1993 L 137, p. 9) and No 1467/93 of 15 June 1993 (OJ 1993 L 144, p. 11).
Facts [...]
9.The applicant's principal activity is the import and export of fruit and vegetables. In early 1993, it purchased approximately 2 million kg of apples from two companies established in Chile.
10.Those apples were loaded on board two ships in the port of Valparaiso, Chile, to be shipped to Greece. The applicant states that the first ship left Chile on 25 March 1993 and arrived in Greece on 18 April 1993; the second left Chile on 13 April 1993 and reached Greece on 6 May 1993.
11.The applicant further states that it applied to the Greek intervention agency for import certificates on 18 March 1993. The countervailing charge introduced by Regulation No 846/93 of 7 April 1993, as amended by Regulations Nos 915/93, 1396/93 and 1467/93, was applied to the apples imported by the applicant.’

3On 30 June 1993, the appellant brought an action before the Court of First Instance seeking annulment of Regulations Nos 846/93, 915/93, 1396/93 and 1467/93 (‘the contested regulations’) and compensation, on the basis of the second paragraph of Article 215 of the Treaty, for the loss incurred as a result of the alleged illegality of the contested regulations.

The judgment under appeal

4The Court of First Instance dismissed the action as inadmissible in so far as it sought the annulment of the contested regulations imposing a countervailing charge on imports of apples originating in Chile. That part of its judgment is not challenged by the appellant.

5In support of its original application for annulment, the appellant put forward six pleas in law, which were examined by the Court of First Instance in its assessment of the merits of the claim for compensation.

6Paragraph 34 of the judgment under appeal states that the appellant alleged breach of Article 25(1) of Regulation No 1035/72, misuse of powers, inadequate statement of the reasons on which the contested regulations were based, breach of the principles of proportionality and equal treatment and, finally, breach of the principle of the protection of legitimate expectations.

7The Court of First Instance dismissed the claim for compensation as unfounded. It based that decision on the consistent case-law to the effect that the Community cannot incur liability on account of a legislative measure which involves choices of economic policy unless a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred. The Court of First Instance found that there had been no such breach of a rule of law.

The appeal

8In its appeal, Unifruit Hellas requests the Court of Justice to set aside the judgment under appeal in so far as the claim for compensation is dismissed, to find that it is entitled, under Articles 178 and 215 of the Treaty, to compensation amounting to a total of DR 107560989, to bear interest both at the borrowing rate and at the statutory rate from the date on which the application was lodged, and to order the Commission to pay the costs.

9In support of the appeal, the appellant challenges in the first place the reasoning of the Court of First Instance in dismissing the claim that, by introducing a countervailing charge, the Commission was in breach of the principle of the protection of legitimate expectations. It further submits that the Court of First Instance did not give sufficient grounds for its rejection of the pleas alleging breach of the principles of proportionality and equal treatment, and misuse of powers. In its arguments in support of those claims, the appellant refers to the considerations which it put forward in the context of its plea alleging breach of the principle of the protection of legitimate expectations.

10The respondent considers that the appeal is unfounded.

11Under Article 119 of the Rules of Procedure, when an appeal is clearly inadmissible or clearly unfounded, the Court may, at any time, dismiss it by reasoned order, without opening the oral procedure.

The first plea in law , alleging breach of the principle of the protection of legitimate expectations

12The first plea in law, alleging breach of the principle of the protection of legitimate expectations, comprises four parts. The first and third parts of the plea should be examined together.

The first and third parts of the first plea

13In the first part of this plea, the appellant claims that the Court of First Instance manifestly erred in its interpretation of the concept of ‘exceptional circumstances’ in Article 25(1) of Regulation No 1035/72. It submits that the Commission is required under that paragraph not to introduce a countervailing charge when, as in the present case, it maintains the requirement that importers must obtain an import licence subject to the lodging of a security which is forfeit if the importation does not take place. A paradoxical and contradictory situation, in which the importer loses the security if the importation does not take place but has to pay a countervailing charge if it does, should be avoided. The concept of ‘exceptional circumstances’ should therefore be interpreted to include a situation such as the present.

14The third part of this plea concerns the reasoning of the Court of First Instance justifying, at paragraph 63 of the judgment under appeal, the coexistence of the requirement that an import licence must be presented after a security has been lodged and the imposition of a countervailing charge. In the appellant's submission, the statement of reasons given by the Court of First Instance is manifestly erroneous and unlawful; it is impossible for the two measures to apply concurrently because the importer concerned would thereby be placed in an absurd situation. No well-informed trader could legitimately expect a combination of measures leading to such contradictory results to the detriment of importers.

15The Court of First Instance did not err in law, and the first and third parts of this plea must be rejected.

16That Court was right to consider, at paragraph 54 of the judgment under appeal, that the proviso for ‘exceptional circumstances’ in Article 25(1) of Regulation No 1035/72 does not apply to the appellant's situation. That paragraph, as justification for a derogation from the principle that a countervailing charge is to be fixed, must be construed strictly. It refers only to situations in which it is not necessary to levy the charge, even though all the criteria for its levying are met, because the volume of produce offered at abnormally low prices is insignificant.

17It has, it is true, consistently been held (see, in particular, Joined Cases C-90/90 and C-91/90 Neu and Others v Secrétaire d'Etat à l'Agriculture [1991] ECR I-3617, paragraph 12) that when it is necessary to interpret a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the Treaty and the general principles of Community law.

18However, an interpretation of Article 25(1) of Regulation No 1035/72 which is most consistent with the objective of that regulation and the general principles of Community law cannot lead to the ‘exceptional circumstances’ clause being interpreted in the manner advocated by the appellant.

19The Court of First Instance was also right in holding, at paragraph 63 of the judgment under appeal, that the introduction of special surveillance measures for imports of apples by Regulation No 384/93 did not preclude the Commission from subsequently introducing a countervailing charge such as that referred to in Article 25(1) of Regulation No 1035/72.

20The requirement relating to import licences and the lodging of a security which is forfeit if importation does not take place, as provided for in Article 2 of Regulation No 384/93, is intended to enable the Commission to determine in the most effective manner its interventions on the market in apples (see Case 25/70 Einfuhrund Vorratsstelle v Köster [1970] ECR 1161, paragraphs 23 to 28). Such a measure thus plays a preparatory role in the context of protective measures.

21In contrast, as the Court of First Instance correctly pointed out in paragraph 61 of the judgment under appeal, a countervailing charge introduced automatically on the basis of Article 25(1) of Regulation No 1035/72 is intended to protect price levels on the Community market by restoring entry prices generally to the level of the reference price. The introduction of a countervailing charge should thus obviate disturbances on the Community market caused by sales of produce from non-member countries at abnormally low prices.

22Consequently, the aims sought by the surveillance measures set up by Regulation No 384/93 and by the countervailing charge introduced by the contested regulations are different but not necessarily contradictory. On the one hand, it is essential that the security be forfeit if the importation does not take place, in order to ensure effective surveillance of the market (see Köster, paragraph 25). On the other, it remains necessary, even if such a surveillance measure is implemented, to obviate disturbances caused by offers of produce imported from non-member countries at abnormally low prices by introducing for that purpose, where appropriate, a countervailing charge prior to the adoption of more stringent measures as provided for in Article 29 of Regulation No 1035/72, read in conjunction with Article 3 of Regulation No 2707/72.

23Thus, contrary to the appellant's contention, the fact that a countervailing charge is imposed concurrently with surveillance measures meets objectives in the general interest. In the light of those objectives, such concurrent application is not such as to affect traders in a disproportionate or intolerable manner. A trader, even if in possession of an import licence, must envisage the possibility that a countervailing charge may be introduced under Article 25(1) of Regulation No 1035/72.

The second part of the first plea

24In the second part of its first plea in law, the appellant claims that the Court of First Instance should have accepted that Article 3(3) of Regulation No 2707/72 applied by analogy to the introduction of a countervailing charge, with the result that such a charge does not apply to products in transit to the Community.

25The appellant submits that the Court of First Instance should have compared the function of the countervailing charge with that of the protective measure of levying an additional amount as provided for in the second indent of Article 3(1) of Regulation No 2707/72. The two measures fulfil absolutely equivalent functions; just like that of the countervailing charge, the aim of the levying of an additional amount is, as stated in the judgment under appeal, not to prevent the sale of non-Community goods on the Community market but solely to protect price levels on that market. Furthermore, the real purpose of the countervailing charge, if repeatedly increased, is to make it impossible for importers to sell their products in the Community, and it is thus extremely similar to a protective measure levying an additional amount or suspending imports.

26The second part of the first plea must also be rejected.

27In paragraphs 56 to 62 of the judgment under appeal, the Court of First Instance specifically stated that the countervailing charge is not similar to a protective measure. It must be stressed that, unlike a countervailing charge, protective measures seek essentially to suspend imports. The effect of Article 3(3) of Regulation No 2707/72 is therefore to allow traders to rely on a legitimate expectation that in the absence of an overriding public interest their products already in transit to the Community will not be refused entry on arrival in Community territory (see Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 16). That provision does not, however, require the Commission, when levying an additional amount, in all cases to exempt products in transit to the Community. A fortiori, it cannot be interpreted in the manner argued by the appellant, as requiring the Commission to exempt products in transit from a countervailing charge, since such a measure is one which affects traders less severely than the levying of an additional amount. In any event, the reference price system would be rendered completely ineffective if goods in transit were exempted from the levying of the countervailing charge.

The fourth part of the first plea

28In the fourth part of its first plea in law, the appellant submits that the judgment under appeal should be set aside on the ground that it failed to acknowledge that the Framework Agreement for Cooperation concluded on 20 December 1990 between the European Economic Community and the Republic of Chile (OJ 1991 L 79, p. 2, hereinafter ‘the Agreement’) had given it a legitimate expectation that no countervailing charge would be imposed, in particular once protective measures had been adopted and a fortiori on products in transit.

29This part of the plea too must be rejected.

30It is sufficient to point out in that regard that the Agreement could not give the appellant any legitimate expectation, since, as the Court of First Instance noted at paragraph 66 of the judgment under appeal, it was in no way intended to amend the provisions of Regulation No 1035/72 concerning countervailing charges.

The second plea in law, alleging breach of the principles of proportionality and equal treatment, and misuse of powers

31In its second plea, the appellant alleges that the Court of First Instance did not give sufficient reasons for its decision to reject the claims of breach of the principles of proportionality and equal treatment, and misuse of powers.

32It confines itself in that regard to referring back to the arguments already put forward in the context of its first plea in law.

33The combined effect of Article 51 of the Statute of the Court of Justice and Article 112(l)(c) of the Rules of Procedure is that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal (see, inter alia, Case C-173/95 P Hogan v Court of Justice [1995] ECR I-4905, paragraph 20). Since the appellant has merely referred back to arguments put forward in another context, the second plea in law must be dismissed as insufficiently substantiated and consequently clearly inadmissible.

34It follows from all of the foregoing that the pleas in law submitted by the appellant in support of its appeal are either clearly inadmissible or clearly unfounded. The appeal must therefore be dismissed pursuant to Article 119 of the Rules of Procedure.

Costs

35Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleadings. Since the appellant has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber)

hereby orders:

1)The appeal is dismissed.
2)The applicant shall bear the costs.