ORDER OF THE PRESIDENT OF THE COURT 12 JULY 1983»

Transcription

1 ORDER OF THE PRESIDENT OF THE COURT 12 JULY 1983» Société d'initiatives et de Coopération Agricole and Société Interprofessionnelle des Producteurs et Expéditeurs en Fruits et Légumes v Commission of the European Communities Case 114/83 R Application for the adoption of interim measures Conditions for granting - (EEC Treaty, Art. 186; Rules of Procedure, Art. 83 (2)) The interim measures which the Court may order in pursuance of Article 186 of the Treaty cannot be considered unless the factual and legal circumstances relied : upon to obtain them establish a prima facie case for granting them. In addition they must be urgent in the sense that it is necessary for the measures to be adopted and to take effect before the decision of the Court on the substance of the case in order to avoid serious and irreparable damage to the party seeking them. Finally,- they must be provisional in the sense that they do not prejudge the decision on the substance of the case. In Case 114/83 R SOCIÉTÉ D'INITIATIVES ET DE COOPÉRATION AGRICOLE, Kerisnel,.. whose registered office is at Saint-Pol-de-Léon, and SOCIÉTÉ INTERPROFESSIONNELLE DES PRODUCTEURS ET EXPÉDITEURS EN FRUITS ET LÉGUMES, whose registered office is at Place du Marché, Saint-Meloirdes-Ondes, 1 Language of the Case: French. 2315

2 ORDER OF CASE 114/83 R represented by Dominique Schmidt, of the Strasbourg Bar, with an address for service in Luxembourg at the Chambers of G. Harles, 34B 4, Rue Philippe-II, applicants, v COMMISSION OF THE EUROPEAN COMMUNITIES, 200 Rue de la Loi, B-1049 Brussels, represented by F. Lamoureux, a member of its Legal Department, with an address for service in Luxembourg at the office of O. Montako, a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg, defendant, APPLICATION for an order calling upon the Commission to adopt measures to put an end to certain practices of the Greek Government and to conduct an inquiry into certain aspects of the functioning of the new-potato market during the 1983 marketing year, pursuant to Article 155 of the EEC Treaty and Article 2 (3) of Regulation (EEC) No 26 of 4 April THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES makes the following ORDER I Facts For several years there has been concern in agricultural circles at what are regarded as disturbances of the ' Community market in new potatoes caused by imports of Greek new potatoes, in particular into the Federal Republic of Germany, France and the United Kingdom. The Community is both a producer and an importer of new potatoes (in particular, from North Africa, Cyprus, Egypt and Spain), which are not covered by a common organization of the agricultural market. The marketing period, which begins between February and April, depending on the country of origin, finishes towards the end of July. It appears that Greek new potatoes are exported between the beginning of April 2316

3 STÉ D'INITIATIVES ET DE COOPÉRATION AGRICOLE v COMMISSION and the end of June and go principally, if not exclusively, to the Federal Republic of Germany and the United Kingdom. In their letter of 10 May 1982 to the Commission the applicants expressed the view that the Greek Government was giving aid for the transport and export of new potatoes in breach of Articles 85, 92 and 93 of the EEC Treaty and the rules organizing the common agricultural market, and that the Commission's failure to act in the matter was causing serious harm to the applicants and other French producers. in the production prices in Brittany allegedly caused by imports of new potatoes offered for sale by Greek exporters at prices substantially lower than the prices prevailing on the Greek market. By letter of 9 June 1983 the Fren;h Government requested the Commission to implement the protective measures provided for in the third subparagraph of Article 130 (2) of the Act concerning tie conditions of accession of the Hellenic Republic, and in Article 29 (1) of Regulation (EEC) No 1035/72 of the Council. By telex message of 10 June 1982, the Commission informed the applicants that it had communicated its views on the legality of the measures in question to the Greek Government. By letters of 17 July 1982 and 5 April 1983 the applicants referred to the text of their letter of 10 May 1982 and requested the Commission to take steps to prevent what they regarded as discriminatory practices on the part of the Greek Government in respect of Greek exports. By telex message of 30 May 1983 the Commission replied to the applicants that the Greek Government denied that it had granted any aid for the export of new potatoes to other Community markets. The Commission informed the applicants that it would continue to follow the case very closely during the 1983 season. By telex message of 2 June 1983 the French Government requested the Commission to take the necessary steps, as quickly as possible, to correct a fall According to Article 130 (1) of the Act of accession, protective measures may be introduced, depending on the sector concerned, until 31 December 1985 or 31 December 1987 either in favour of the Hellenic Republic at its request, or against the Hellenic Republic at the request of a Member State when difficulties arise which are serious and liable to persist in any sector of the economy or which could bring about serious deterioration in the economic situation of a given area. The third subparagraph of Article 130 (2) provides that: "In the agricultural sector, where trade between the Community as at present constituted and Greece causes or threatens to cause serious disturbances on the market of a Member State, the Commission shall act upon a request by a Member State for the application of appropriate measures within 24 hours of receiving such request. The measures thus decided on shall be applicable forthwith and shall take account of the interests of all parties concerned and, in particular, transport problems." 2317

4 ORDER OF CASE 114/83 R The French Government's request of 9 June 1983 was rejected by the Commission in Decision C (83) 883 of 17 June The Commission maintains that the fall in the price of new potatoes is caused by several contributing factors óf different origin, that the quantity of Greek exports to Germany is insignificant and that those to other markets in the Community, in particular the United Kingdom, do not exceed a few hundred tonnes, which are, moreover, placed on' the market at prices not lower than the prices of products of Italian origin which are imported in considerably greater quantities. On 20 June 1983 the Government of the United Kingdom presented to the Commission a request similar to that of the French Government of 9 June By decision of 1 July the Commission-rejected that request. On 20 June 1983, the applicants brought an action seeking a declaration that by refusing to rule on their request of 5 April 1983, confirmed on 2 June 1983, the Commission had infringed Articles 85, 91, 155 and 169 of the EEC Treaty, Article 130 of the Act concerning the conditions of accession of the Hellenic Republic and the provisions of Regulation (EEC) No 26 of the Council, and a declaration that the Commission was liable for the loss caused to the applicants by the Commission's failure to act. They also ask that the compensation to which they are entitled be fixed. "Make an order calling upon the Commission to adopt any measure within its powers to put an end to the practices of the Greek authorities and Greek exporters, practices which are described in the application of 18 June 1983 (Case 114/83) and in the present application; Failing that, make an order calling upon the Commission, pursuant to the provisions of Article 155 of the EEC Treaty and pursuant to the provisions of Article 2 (3) of Regulation (EEC) No 26 of 4 April 1962, to conduct an inquiry into the functioning of the newtpotato market during the 1983 marketing year in order to ascertain, in particular, the export prices of Greek new potatoes on the Community markets and the prices of the same products on Greek wholesale markets." In support of their claims the applicants refer to their main action. They claim essentially that exports of Greek new potatoes to the Federal Republic of Germany, France and the United Kingdom at prices lower than the prices prevailing on the Greek market have created a serious crisis on the French production markets which may only be corrected by the immediate adoption of the protective measures which the Commission refused in its decision of 17 June 1983 on the basis of an erroneous assessment of the facts and in breach of the provisions cited in the main action. II Written procedure By application lodged at the Court Registry on 1 July 1983, the applicants claim that the Court should: In its observations lodged at the Court Registry on 7 July 1983, the defendant contends that the Court should dismiss the application for the adoption of interim measures and asks that the costs be reserved. 2318

5 STÉ D'INITIATIVES ET DE COOPÉRATION AGRICOLE v COMMISSION The defendant gives a description of the functioning of the new-potato market. It then states that it considers the application for the adoption of interim measures inadmissible inasmuch as the main action is neither admissible nor well founded. In support of its conclusions, the defendant contends essentially that the applicants do not satisfy the conditions of admissibility set out in Article 175 of the EEC Treaty inasmuch as they request that the Commission adopt decisions in which, in the light of the provisions of Articles 91 of the EEC Treaty, 130 (2) of the Act concerning the conditions of accession of the Hellenic Republic and of Regulation (EEC) No 26 of the Council, they have no legal interest and inasmuch as they did not submit a request under Article 3 (2) of Regulation No 17 of thé Council. It adds that it did not fail to rule on the requests for protective measures submitted by France and the United Kingdom and - that its decisions of 17 June and 1 July 1968 were made on the basis of a correct assessment of the facts. It considers, moreover, that the application for the adoption of interim measures is also inadmissible in so far as the main action is founded on Article 215 of the EEC Treaty because the alleged failure to rule does not constitute a breach of a superior rule of law protecting individuals. Finally, the defendant contends that the measures sought by the applicants in the present interim proceedings are not capable of preventing the alleged harm, the existence of which is contested by the defendant, because the end of the marketing year for new potatoes is imminent. For the same reasons, the measures sought are not urgent, it further states that the measures sought would inevitably prejudge the decision to be given in the main action. Ill Oral procedure The parties were duly summoned and presented oral argument at the hearing on the adoption of interim measures on 11 July Decision 1 According to Article 186 of the EEC Treaty, the Court may in cases before it prescribe any necessary interim measures. 2 According to the established case-law, the adoption of such measures cannot be considered unless the factual and legal circumstances relied upon to obtain them establish z prima facie case for granting them. In addition they 2319

6 ORDER OF CASE 114/83 R must be urgent in the sense that it is necessary for the measures to be adopted and to take effect before the decision of the Court on the substance of the case in order to avoid serious and irreparable damage to the party seeking them. Finally, they must be provisional in the sense that they do not prejudge the decision on the substance of the case. 3 It appears from the oral procedure in the interim proceedings that the application for interim measures is a step in the main action in so far as that action is founded on the non-contractual liability of the Community and seeks to obtain compensation for the damage which the applicants claim to have suffered. They attribute that damage to the fact that the Commission, in their opinion in breach of the Treaty, failed to adopt the protective measures provided for in Article 130 of the Act concerning the conditions of accession of the Hellenic Republic. 4 In support of that application, the applicants claim that the measures sought are urgent and necessary in order to prevent the damage "already" sustained by them from being seriously aggravated by the Commission's "failure to take action". The first limb of the application 5 The first part of the application cannot be accepted. Consideration of both that limb of the application and the main action reveals that the application raises prima facie serious problems both as regards the admissibility and the merits of the action for liability relating to matters governed by Article 130 of the Act of accession of the Hellenic Republic. In addition it appears that for the major part of the production in question, the market season is finishing. In the light of those two facts in particular, it would be disproportionate in relation to the requirements of the protection of any right to compensation which the applicants may claim in the main action to adopt provisionally measures supposedly intended to limit the damage in respect of 2320

7 STÉ D'INITIATIVES ET DE COOPÉRATION AGRICOLE v COMMISSION which compensation will be requested on the basis of Article 215 of the Treaty, but which essentially correspond to the measures provided for in Article 130 of the Act of accession. The second limb of the application 6 The second part of the application, which is based on Article 2 (3) of Regulation (EEC) No 26 of the Council of 4 April 1962 (Official Journal, English Special Edition , p. 129) applying certain rules of competition to production of and trade in agricultural products, asks the Court to order the Commission to conduct an inquiry into the functioning of the new-potato market during the marketing year 1983, in particular as regards the comparison of the prices of Greek new potatoes on the market of that Member State and the prices of the same potatoes when exported to other Member States. 7 It should be noted in the first place that Article 2 (3) of Regulation (EEC) No 26, on which the applicants base the second limb of their application, only concerns the application of Article 85 of the Treaty to certain agricultural products. The applicants have failed to produce any evidence of the existence of a link between the application of Article 85 and the subject of that part of the application. 8 In addition, the applicants have not adduced any evidence establishing that it is urgent and necessary to make an order in the interim proceedings for the investigation they seek in order to ensure an appropriate preliminary inquiry in the main action. 9 The rejection of that limb of the application does not, however, prejudice in any way whatsoever the measures of inquiry which the applicants may request or which the Court might order in the course of the main action. io In those circumstances it is appropriate to reserve the costs. 2321

8 ORDER OF CASE 114/83 R On those grounds, THE PRESIDENT, by way of interim decision, hereby orders as follows : 1. The application is dismissed. 2. The costs are reserved. Luxembourg, 12 July P. Heim Registrar J. Mertens de Wilmars President 2322