Order of the President of the Court of 29 January 1997. – J. Antonissen v Commission of the European Communities and Council of the European Union.

BIB.ORDER

C-393/96 P(R)61996O03930017.0001444145916CJ

ORDER OF 29. 1. 1997 — CASE C-393/96 P(R)

ANTONISSEN v COUNCIL AND COMMISSION

Order of the President of the Court

29 January 1997^(*)

In Case C-393/96 P(R),

J. Antonissen, a farmer, residing at Giethem, the Netherlands, represented by E. H. Pijnacker Hordijk, of the Amsterdam Bar, and Τ P. J. van Oers, of the Hague Bar, with an address for service in Luxembourg at the Chambers of L. Frieden, 62 Avenue Guillaume,

appellant,

APPEAL against the order of the President of the Court of First Instance of the European Communities of 29 November 1996 in Case T-179/96 R Antonissen v Council and Commission [1996] ECR II-1641, seeking to have that order set aside and the case referred back to the Court of First Instance,

the other parties to the proceedings being:

Council of the European Union, represented by G. Houttuin, A.-M. Colaert and J.-P. Hix, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of B. Eynard, Director General of the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

and

Commission of the European Communities, represented by T. van Rijn, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

THE PRESIDENT OF THE COURT,

after hearing the Advocate General, G. Tesauro,

makes the following

Order

1By application lodged at the Registry of the Court of Justice on 5 December 1996, the appellant brought an appeal under the second paragraph of Article 50 of the EC Statute of the Court of Justice against the order of the President of the Court of First Instance of 29 November 1996 in Case T-179/96 R Antonissen v Council and Commission [1996] ECR II-1641, dismissing his application for an order that the European Community pay, by way of advance, the sum of HFL 258565.38, with interest thereon at the rate of 5% calculated from 1 September 1996, together with the sum of HFL 20000 per annum from the date on which the application for interim relief was lodged until the date on which the Court of First Instance gives judgment in the main case, together with any other measure which the President might consider appropriate.

Facts and procedure

2The factual background to the proceedings is set out in the order under appeal as follows:

‘1.The applicant, Mr J. Antonissen, is successor to his late father-in-law, Mr A. A. Herbrink, established at Giethem, in the Netherlands. Mr Herbrink was a SLOM (“Staking van de Levering van melk en zuivelprodukten en Omschakeling van het Melkveebestand” — cessation of deliveries of milk and milk products and conversion of dairy herds) producer who had not marketed any milk or milk products between 17 May 1979 and 17 May 1984, having given a non-marketing undertaking under Council Regulation (EEC) No 1078/77 of 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds (OJ 1977 L 131, p. 1), as subsequently amended.
2.On the expiry of his SLOM agreement, Mr Herbrink applied for a special reference quantity, or “milk quota”, for 1984 under Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13), which had just entered into force; however, the Netherlands authorities refused his application on the ground that he had not produced any milk during 1983, the reference year.
3.Mr Herbrink then sought judicial review of that decision. The competent national court, the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry), stayed the proceedings pending a ruling by the Court of Justice on the validity of Regulation No 857/84, which made no provision for a reference quantity for producers who had given a non-marketing undertaking. The Court of Justice delivered its judgment on 28 April 1988 (Case 120/86 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321).
4.In 1988, following the delivery of that judgment, Mr Herbrink equipped the new holding which he had leased in the meantime with a view to resuming milk production. In June 1989, he applied to the national authorities for a special reference quantity. At approximately the same time, he started to produce milk on his new holding, even though he had not obtained a milk quota.
5.By decision of 2 February 1990, the national authorities refused Mr Herbrink's application for a quota. Referring to Article 3a(l) of Commission Regulation (EEC) No 1546/88 of 3 June 1988 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68 (OJ 1988 L 139, p. 12), the national authorities considered that he could not claim a special reference quantity because such a quantity could be granted to a SLOM producer only where the applicant still operated, in whole or in part, his initial SLOM holding. Mr Herbrink did not meet that requirement.
6.Mr Herbrink again sought judicial review of that decision by the College van Beroep voor het Bedrijfsleven, which sought a preliminary ruling from the Court of Justice on a number of questions concerning, in particular, the requirement imposed by, inter alia, Article 3a(l) of Regulation No 1546/88, that a SLOM producer wishing to obtain a special reference quantity must prove that he still operates, in whole or in part, the same holding as he operated at the time of the approval of his SLOM premium application.
7.In its judgment delivered on 27 January 1994 (Case C-98/91 Herbrink v Minister van Landbouw, Natuurbeheer en Visserij [1994] ECR I-223), the Court of Justice did not declare the Community provision in question invalid, but interpreted it as not precluding a SLOM producer from being able, even after the expiry of his lease, to benefit from a special reference quantity if he intends to pursue milk production.
8.In the national proceedings resumed before the College van Beroep voor het Bedrijfsleven, the national authorities adhered to a strict interpretation of the conditions for granting a special reference quantity and did not avail themselves of the possibility provided for in Article 7(4) of Regulation No 857/84. They therefore informed Mr Herbrink that he could not benefit from a special reference quantity.
9.The College van Beroep voor het Bedrijfsleven upheld the reasoning of the national authorities and, in its decision of 14 May 1996, dismissed Mr Herbrink's application. Consequently, since no appeal lies against the decision of the College van Beroep voor het Bedrijfsleven, the decision of 2 February 1990 refusing to grant Mr Herbrink a special reference quantity has become conclusive.
10.As a result of that decision, the milk produced on Mr Herbrink's holding since the expiry of his SLOM agreement is subject to a supplementary levy, which must be paid to the dairy to which the milk is delivered.
11.From 1988 onwards, Mr Herbrink operated his holding jointly with the applicant in a partnership which did not have legal personality. Following Mr Herbrink's death in 1995, the applicant continued to operate the holding alone. Salland, the dairy to which Mr Herbrink and the applicant, individually or jointly, have delivered milk since the middle of 1989, has announced that it intends shortly to undertake recovery of the supplementary levy payable since the 1989/90 milk marketing year.
12.On 25 July 1996, the applicant received a letter from Salland indicating that he owes it the sum of HFL 258565.38 in respect of supplementary levy. The applicant was allowed until 31 August 1996 to pay that sum. The dairy also claims interest at the statutory rate, which has been 5% since 1 July 1996, on the amount due. By letter of 30 October 1996, the dairy informed the applicant of its intention to place the matter in the hands of a bailiff if the amount due was not paid by 1 December 1996.
13.The applicant considers himself unable to pay the amount due and fears that the dairy may not be inclined to take his particular circumstances into account by discharging his obligation to pay or by allowing him special terms or deferred payment.’

3By application lodged at the Registry of the Court of First Instance on 11 November 1996, the appellant sought an order that the Community make good the damage which he has suffered, and may suffer in the future, as a result of the refusal to allocate a special reference quantity to him or his predecessor in title since the non-marketing undertaking given by Mr Herbrink. He also sought payment of (i) the sum of HFL 258565.38, corresponding to the supplementary levy due from him and the partnership of which he formed part in respect of the milk produced by them following the expiry of the non-marketing undertaking, together with interest thereon, (ii) the sum of HFL 58695, resulting from the application of Council Regulation (EEC) No 2187/93 of 22 July 1993 providing for an offer of compensation to certain producers of milk and milk products temporarily prevented from carrying on their trade (OJ 1993 L 196, p. 6) over the periods following the expiry of the non-marketing undertaking, during which the applicant or his predecessor in title produced no milk, together with interest thereon, and (iii) the sum of HFL 180322.20, representing the costs of obtaining a substitute reference quantity equal to the reference quantity to which he would have been entitled had he still been operating Mr Herbrink's original holding.

4By separate document registered at the Registry of the Court of First Instance on the same day, the appellant sought, pursuant to Article 186 of the EC Treaty, an order that the Community pay him, by way of advance, the sum of HFL 258565.38, with interest thereon at the rate of 5% from 1 September 1996, in order to pay the amount owed by him to the dairy Salland BV. He also sought an order that the Community pay him the sum of HFL 20000 per annum from the date on which the interim application was lodged until the date on which the Court of First Instance gives judgment in the main case, together with any other measure which the President might consider appropriate.

The order under appeal

5The application for interim measures was dismissed by the order under appeal.

6After examining the parties' arguments as to whether the measures sought were of a provisional nature, the order under appeal points out, in the first place, that the measures provided for in Articles 185 and 186 of the Treaty cannot have any object other than 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 deprived of any practical effect and that they must therefore not prejudge the decision on the substance of the case (paragraph 29).

7In the present case, the measures sought in the interlocutory application corresponded to part of the measures sought in the main application and would thus, if granted, anticipate the argument on the substance of the case. However, ‘a rinding of liability, with the effects thereby entailed, cannot be taken on the basis of a prima facie case; it must be based on a definitive assessment of the facts and pleas in law put forward, and therefore requires that a procedure be followed in which all the parties are guaranteed the right to a fair hearing’ (paragraph 30).

8The application for interim measures is therefore dismissed on that ground ‘without there being any need to consider whether the pleas in law and arguments put forward by the applicant in justification of the measure sought are well founded’ (paragraph 31).

9In the present appeal, the appellant seeks an order setting aside the order under appeal, referring the case back to the Court of First Instance and ordering the Council and the Commission to pay the costs.

Arguments of the parties

10The applicant puts forward four pleas in law in support of his appeal.

11In his first plea, he alleges infringement of Article 186 of the Treaty and breach of the obligation to state reasons.

12In that regard, he challenges the reasoning in the order under appeal to the effect that one of the measures sought (payment, by way of advance, of HFL 258565.38, plus interest) corresponds exactly to one of the claims in his main application, whilst the other (payment of HFL 20000 per annum until judgment is delivered in the main proceedings) would amount to payment in advance of compensation for future and uncertain damage, and that they therefore do not constitute interim measures within the meaning of Article 186 of the Treaty.

13In the appellant's submission, the first interim measure sought, by way of advance, relates to only a part of the compensation sought in the main proceedings, and the sum of HFL 20000 per annum does not correspond to payment of compensation in advance but is intended solely to allow him to lease a milk quota until judgment is delivered in the main proceedings.

14The respondents submit that the sum of HFL 258565.38 does correspond to a distinct part of the compensation sought in the main action, as the President of the Court of First Instance rightly pointed out, and that the sum of HFL 20000 per annum is nothing other than payment of damages in advance although it has not yet been established that the appellant will be liable to pay a supplementary levy on the quantity of milk he produces.

15In his second plea in law, the appellant alleges infringement or misapplication of Article 186 of the Treaty in that, according to the order under appeal, the measures sought could only be granted, as such, on the basis of a definitive assessment of the facts and pleas in law put forward and must therefore be refused without an examination of the pleas and arguments which he had put forward in support of his application.

16On the contrary, he submits, the facts and circumstances put forward in his application to show that if the interim measures sought were not granted the judgment in the main case would be deprived of practical effect should have been taken into consideration. An interim measure in the form of granting (by way of advance) a part of the compensation sought in the main proceedings is not, he claims, inconsistent with the conditions for or nature of an interim application. He refers to the approach prevailing in Netherlands law.

17The respondents reply, essentially, that paragraph 30 of the order under appeal is based on correct reasoning and refer in support to the order of the President of the Court of First Instance in Cases T-278/93 R and T-555/93 R, T-280/93 R and T-541/93 R Jones and Others v Council and Commission [1994] ECR II-11, paragraph 54. They add that, in any event, there is absolutely no prima facie case. They stress, finally, that granting the interim measures sought would in fact amount to ordering the Community definitively to pay a major part of the compensation claimed.

18In his third plea, the appellant alleges infringement of Article 186 of the Treaty and breach of the obligation to state reasons and of the audi alteram partem rule, in that the order under appeal did not examine whether other appropriate interim measures might possibly have been ordered to safeguard his interests.

19Finally, in his fourth plea, the appellant considers that the order under appeal should not have been made without first giving him an opportunity to present his point of view more fully at a hearing, given the novelty of the questions raised. Failure to do so constitutes infringement of Article 186 of the Treaty and a breach of the obligation to state reasons and of the audi alteram partem rule.

20In reply to the latter two pleas, the respondents submit that such matters fall within the discretion of the judge dealing with an application for interim measures.

Findings

21The third and fourth pleas in law raised in the appeal must be dismissed at once.

22Both the question whether measures other than those expressly sought by the applicant should be envisaged and the question whether to hear oral argument from the parties are matters which fall within the discretion of the judge dealing with an application for interim measures.

23In that context, the few points put forward by the appellant, relating essentially to the specific nature of his situation and the novelty of the legal questions raised by his application, do not reveal that the President of the Court of First Instance overstepped the bounds of his discretion, contrary to Article 186 of the Treaty or the audi alteram partem rule, by declining to envisage measures other than those expressly sought by the applicant or to hear oral argument from the parties.

24Furthermore, as regards the allegation concerning the statement of reasons in the order under appeal, grounds are given for the absence of a hearing in that the President of the Court of First Instance considered ‘that he has sufficient information to rule on the present application for interim measures and that it is not necessary to hear oral argument from the parties before doing so’ (paragraph 17). The allegation of breach of the obligation to state reasons must therefore be rejected on that point.

25With regard to the grounds for not adopting measures other than those expressly sought by the applicant, the judge dealing with an interim application cannot be required to reply explicitly to all the points of fact and law raised in the course of the interlocutory proceedings (order of the President of the Court of Justice in Case C-149/95 P(R) Commission ν Atlantic Container Line and Others [1995] ECR I-2165, paragraph 58). The same applies, a fortiori, in the case of provisional measures which have not been identified in the interim application. That plea must therefore also be dismissed.

26The first two pleas in law put forward in the appeal, challenging the assessment given in the order under appeal of the provisional nature of the measures sought, must be examined together.

27It has consistently been held that it is open to the judge dealing with such an application to order interim measures if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable damage to the applicant's interests, it must be made and produce its effects before a decision is reached in the main action. Such an order must further be provisional inasmuch as it must not prejudge the points of law or fact in issue or neutralize in advance the effects of the decision subsequently to be given in the main action.

28In the context of that overall examination, the judge dealing with the application enjoys a broad discretion to determine the manner in which those various conditions are to be examined. That discretion must be exercised in the light of the specific circumstances of each case (see Atlantic Container Line and Others, cited above, paragraph 23).

29At paragraph 30 of the order under appeal, the measures sought in the interim application are described as being ‘in part the measures sought in the main application — an order against the Community to pay the amounts claimed’.

30Such measures would thus, it is stated in the order under appeal, anticipate the argument on the substance of the case and therefore require a definitive assessment of the facts and pleas in law put forward, following a procedure in which all the parties are guaranteed the right to a fair hearing.

31Neither the importance of the prima facie case put forward by applicant nor the degree of urgency which he alleged seem to have been taken into consideration in that reasoning.

32In particular, it is expressly stated that there was no need to consider whether the pleas in law and arguments put forward by the applicant in justification of the measure sought were well founded (paragraph 31).

33Admittedly, one of the measures sought is described in the order under appeal as ‘payment in advance of compensation for future and uncertain damage’ (paragraph 30), showing that the President of the Court of First Instance was persuaded that the condition relating to urgency was not met.

34In the absence of any other statement of reasons, however, that observation alone cannot suffice to show clearly and unequivocally that the President's reasoning was based on an examination of the circumstances of the individual case.

35The wording of the order under appeal therefore appears to indicate that a measure granting (by way of advance) a part of the compensation claimed in the main proceedings and seeking to protect the applicant's interests until judgment is delivered in those proceedings is inconsistent with the conditions for or nature of an interim application, irrespective of the factual and legal circumstances of the individual case.

36However, an absolute prohibition on obtaining a measure of that kind, irrespective of the circumstances of the case, would not be compatible with the right of individuals to complete and effective judicial protection under Community law, which implies in particular that interim protection be available to them if it is necessary for the full effectiveness of the definitive future decision (see, inter alia, the judgments in Case C-213/89 Factortame and Others [1990] ECR I-2433, paragraph 21, and in Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415, paragraphs 16 to 18, and the order in Case C-399/95 R Germany v Commission [1996] ECR I-2441, paragraph 46).

37It is therefore not possible to rule out in advance, in a general and abstract manner, that payment, by way of an advance, even of an amount corresponding to that sought in the main application, may be necessary in order to ensure the practical effect of the judgment in the main action and may, in certain cases, appear justified with regard to the interests involved.

38Only by examining the factual circumstances, and in particular the state of the appellant's assets, is it possible in particular to assess whether it would in fact be possible to recover any payment by way of advance when judgment is delivered in the main action.

39Such a measure, if granted, would not necessarily prejudge the decision on the substance of the case, since an interim measure lapses when final judgment is delivered.

40In any event, it is for the judge dealing with an application for such an interim measure to balance the applicant's interest in avoiding a deterioration of his financial position, which might lead to an irreversible cessation of his activities, against the risk that it might be impossible to recover the amounts sought if the main application were dismissed.

41It is true that recourse to such a type of measure, which is more likely than others to give rise in fact to irreversible effects, in particular in the event of the applicant's subsequent insolvency, must be restricted, and should be confined to cases where the prima facie case appears particularly strong and the urgency of the measures sought undeniable. None the less, such an assessment must be made in the light of the circumstances of each case.

42Moreover, if, when he has assessed all the circumstances of the case in order to weigh up the interests involved, the balance appears to him to be in favour of granting the measure sought, the judge dealing with the interim application may still impose any condition or guarantee which he considers necessary when granting that measure, or limit its scope in any other way.

43The appeal must therefore be allowed and the order under appeal set aside, since the statement of reasons given in it does not show that an assessment was made of the application for interim measures on the basis of the circumstances of the case.

44Under the first paragraph of Article 54 of the EC Statute of the Court of Justice, if an appeal is well founded, the Court of Justice is to quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.

45Since that provision applies also to appeals brought under the second paragraph of Article 50 of the EC Statute of the Court of Justice, the case must be referred back to the Court of First Instance for judgment.

On those grounds,

THE PRESIDENT OF THE COURT

hereby orders:

1.The order of the President of the Court of First Instance of 29 November 1996 in Case T-179/96 R Antonissen v Commission is set aside.
2.The case is referred back to the Court of First Instance.
3.Costs are reserved.