Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
ACTION FOR ANNULMENT - REVOCATION OF CONTESTED MEASURE - ACTION DEVOID OF PURPOSE DESPITE THE POSSIBILITY OF A SUBSEQUENT ACTION FOR DAMAGES - DECISION UNNECESSARY
( EEC TREATY , ART . 173 , SECOND PARAGRAPH )
Summary
THE REVOCATION OF THE CONTESTED MEASURE IS THE OUTCOME DESIRED BY THE APPLICANT AND THEREFORE RENDERS AN ACTION FOR ANNULMENT DEVOID OF PURPOSE DESPITE THE POSSIBILITY OF A SUBSEQUENT ACTION FOR DAMAGES ; ACCORDINGLY IT IS UNNECESSARY FOR THE COURT TO GIVE A DECISION .
Parties
IN CASE 82/85
EURASIAN CORPORATION LTD , A COMPANY INCORPORATED UNDER THE LAW OF THE KINGDOM OF THAILAND , HAVING ITS REGISTERED OFFICE IN BANGKOK , REPRESENTED BY H . J . BRONKHORST , OF THE HAGUE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH , OF THE LUXEMBOURG BAR ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , R . C . FISCHER , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES KREMLIS , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,
Subject of the case
APPLICATION REQUESTING THE COURT TO DECLARE VOID A COMMISSION DECISION CONCERNING THE IMPORTATION BY THE APPLICANT OF CERTAIN QUANTITIES OF MANIOC PRODUCTS ORIGINATING IN THAILAND INTO THE COMMUNITY UNDER SPECIAL IMPORT ARRANGEMENTS ,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 2 APRIL 1985 , EURASIAN CORPORATION LIMITED , A COMPANY INCORPORATED UNDER THE LAW OF THE KINGDOM OF THAILAND , BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY REQUESTING THE COURT TO DECLARE VOID THE DECISION OF 22 MARCH 1985 WHEREBY THE COMMISSION REFUSED TO TAKE THE NECESSARY STEPS TO ENABLE THE APPLICANT TO IMPORT CERTAIN QUANTITIES OF TAPIOCA INTO THE COMMUNITY UNDER THE CONDITIONS FORMING PART OF THE SPECIAL IMPORT ARRANGEMENTS WHICH WERE APPLICABLE AT THE TIME TO MANIOC PRODUCTS ORIGINATING IN THE KINGDOM OF THAILAND .
2 UNDER A COOPERATION AGREEMENT BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND THE KINGDOM OF THAILAND ON MANIOC PRODUCTION ( OFFICIAL JOURNAL 1982 , L 219 , P . 53 ), CONCLUDED FOR THE PERIOD FROM 1 JANUARY 1982 TO 31 DECEMBER 1986 , THAILAND UNDERTOOK TO MANAGE ITS EXPORTS OF MANIOC TO THE COMMUNITY SO AS TO ENSURE THAT CERTAIN SPECIFIED QUANTITIES ( 4.5 MILLION TONNES IN 1985 ) WERE NOT EXCEEDED AND NOT TO ISSUE EXPORT CERTIFICATES IN RESPECT OF ANY QUANTITIES IN EXCESS OF THE LIMITS SPECIFIED . FOR ITS PART , THE COMMUNITY UNDERTOOK TO ADOPT THE NECESSARY PROVISIONS TO ENSURE THAT IMPORT LICENCES WERE ISSUED UPON SUBMISSION OF VALID EXPORT CERTIFICATES AND TO LIMIT THE LEVY APPLICABLE TO IMPORTS OF MANIOC COVERED BY THE AGREEMENT TO A MAXIMUM AMOUNT OF 6% AD VALOREM .
3 IN PERFORMANCE OF THAT COOPERATION AGREEMENT , THE COMMISSION ADOPTED REGULATION ( EEC ) NO 3675/83 OF 23 DECEMBER 1983 LAYING DOWN DETAILED RULES FOR IMPLEMENTING THE IMPORT ARRANGEMENTS APPLICABLE TO MANIOC PRODUCTS ORIGINATING IN THAILAND ( OFFICIAL JOURNAL 1983 , L 366 , P . 41 ). ARTICLE 4 OF THAT REGULATION PROVIDES THAT THE APPLICATION FOR AN IMPORT LICENCE MUST BE SUBMITTED TO THE COMPETENT AUTHORITIES IN THE MEMBER STATES ACCOMPANIED BY THE ORIGINAL OF THE EXPORT CERTIFICATE AND THAT ONLY THE QUANTITY INDICATED UNDER ' SHIPPED WEIGHT ' ON THE EXPORT CERTIFICATE MAY BE TAKEN INTO CONSIDERATION FOR THE ISSUE OF THE IMPORT LICENCE .
4 COMMISSION REGULATION ( EEC ) NO 3283/84 OF 23 NOVEMBER 1984 ( OFFICIAL JOURNAL 1984 , L 307 , P . 20 ) SUPPLEMENTED ARTICLE 4 BY ADDING TO IT A SECOND PARAGRAPH WHICH IS WORDED AS FOLLOWS :
' WHERE THE QUANTITIES ACTUALLY UNLOADED ARE FOUND TO EXCEED THE TOTAL QUANTITIES STATED IN THE EXPORT CERTIFICATES ALLOCATED FOR THE SHIP IN QUESTION , THE COMPETENT AUTHORITIES DESIGNATED BY THE MEMBER STATES SHALL , AT THE REQUEST OF THE IMPORTER , NOTIFY THE COMMISSION BY TELEX , IN EACH CASE AND WITHOUT DELAY , OF THE NUMBER OR NUMBERS OF THE EXPORT CERTIFICATES , THE NUMBER OR NUMBERS OF THE IMPORT LICENCES AND THE EXCESS QUANTITY RECORDED WHEN UNLOADING TOOK PLACE .
THE COMMISSION SHALL CONTACT THE THAI AUTHORITIES SO THAT NEW EXPORT CERTIFICATES CAN BE DRAWN UP WITH A VIEW TO ALLOWING THE EXCESS QUANTITIES TO BE RELEASED INTO FREE CIRCULATION AS SOON AS POSSIBLE ON THE BASIS OF NEW IMPORT LICENCES . IN THE INTERVENING PERIOD , THE EXCESS QUANTITIES MAY NOT BE PUT INTO FREE CIRCULATION UNDER THE CONDITIONS LAID DOWN BY THE EEC/THAILAND AUTOLIMITATION AGREEMENT . '
5 THE APPLICANT HAD A CONSIGNMENT OF TAPIOCA , A PRODUCT DERIVED FROM MANIOC , SHIPPED TO AMSTERDAM ON THE PANAMAX MERCURY , A FREIGHTER WHICH UNLOADED A TOTAL QUANTITY OF 52 884 533 KG IN THAT PORT BETWEEN 10 JANUARY 1985 AND 18 FEBRUARY 1985 . THE APPLICANT CLASSIFIED PART OF THAT QUANTITY , NAMELY 597 521 KG , AS EXCESS WHICH IT WISHED TO IMPORT INTO THE COMMUNITY ON THE BASIS OF THE ABOVEMENTIONED RULES . ON 19 MARCH 1985 IT SUBMITTED A REQUEST TO THAT EFFECT TO THE HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN ( CENTRAL BOARD FOR AGRICULTURAL PRODUCTS , HEREINAFTER REFERRED TO AS ' THE BOARD ' ), THE HAGUE . THE BOARD APPROACHED THE COMMISSION WHICH REPLIED ON 22 MARCH 1985 WITH A TELEX MESSAGE WORDED AS FOLLOWS :
' IN REPLY TO YOUR TELEX NO 50 556 OF 20 MARCH 1985 , WE CONFIRM THAT WE ARE UNABLE TO GIVE YOU AN AFFIRMATIVE ANSWER SINCE YOUR REQUEST INCLUDES A QUANTITY OF 5 101 500 KG IN TRANSIT TO PORTUGAL WHICH CANNOT BE INSPECTED .
PORTUGAL IS NOT A MEMBER OF THE COMMUNITY . '
6 ON 2 APRIL 1985 THE APPLICANT BROUGHT AN ACTION FOR THE ANNULMENT OF THAT TELEX MESSAGE ON THE GROUND THAT IT CONSTITUTED A DECISION WHICH WAS OF CONCERN TO IT WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY AND WHICH WAS OPEN TO CHALLENGE . THE APPLICANT CONTESTED THE LEGALITY OF THAT MEASURE ON THE GROUND THAT , HAVING REGARD TO THE PROCEDURE PROVIDED FOR BY THE SECOND SUBPARAGRAPH OF ARTICLE 4 ( 2 ) OF THE AFORESAID REGULATION , THE COMMISSION SHOULD HAVE CONTACTED THE THAI AUTHORITIES IN ORDER TO FACILITATE THE ISSUE OF NEW EXPORT CERTIFICATES NEEDED TO IMPORT THE EXCESS QUANTITIES OF TAPIOCA IN QUESTION AT THE PREFERENTIAL RATE OF 6% AD VALOREM .
7 IT IS COMMON GROUND THAT ON 2 APRIL 1985 THE COMMISSION APPROACHED THE THAI AUTHORITIES TO REQUEST THE ISSUE OF THE EXPORT CERTIFICATES SOUGHT BY THE APPLICANT , AFTER THE BOARD HAD TRANSMITTED TO THE COMMISSION ON 29 MARCH 1985 A NEW ESTIMATE OF THE EXCESS QUANTITY CONCERNED WHICH THE LATTER ON THAT OCCASION CONSIDERED TO BE IN CONFORMITY WITH THE RELEVANT PROVISIONS . FOLLOWING THE COMMISSION ' S APPROACH , THE THAI AUTHORITIES ISSUED EXPORT CERTIFICATES IN RESPECT OF THE BULK OF THE EXCESS QUANTITIES UNLOADED FROM THE PANAMAX MERCURY , AS CALCULATED BY THE BOARD ON 29 MARCH 1985 . IT IS ALSO COMMON GROUND THAT ON 26 APRIL 1985 THE THAI AUTHORITIES PROCEEDED TO DRAW UP THE EXPORT CERTIFICATES WHICH WERE STILL NEEDED IN ORDER TO BE ABLE TO ISSUE IMPORT LICENCES IN RESPECT OF THE ENTIRE CONSIGNMENT ON BOARD THE PANAMAX MERCURY .
8 IN THOSE CIRCUMSTANCES THE COMMISSION HAS RAISED THE QUESTION WHETHER THE APPLICANT STILL HAS A SUFFICIENT INTEREST IN THESE PROCEEDINGS AND WHETHER THE APPLICATION HAS BECOME DEVOID OF PURPOSE .
9 IN THAT REGARD THE APPLICANT MAINTAINS THAT EVEN THOUGH THE MAIN PURPOSE OF THESE PROCEEDINGS SEEMS TO HAVE BEEN ACHIEVED , THEY HAVE NOT LOST THEIR IMPORTANCE . IT CLAIMS THAT , SINCE IT IS A COMPANY WHICH EXPORTS LARGE CONSIGNMENTS OF MANIOC ON A REGULAR BASIS FROM THAILAND TO THE COMMUNITY , IT HAS A SUBSTANTIAL INTEREST IN OBTAINING A DECLARATION FROM THE COURT THAT THE COMMISSION ERRONEOUSLY APPLIED IN THIS CASE THE COOPERATION AGREEMENT CONCERNED . MOREOVER , IT CONTINUES TO HAVE AN INTEREST IN THE ACTION FOR ANNULMENT AS A BASIS FOR A POSSIBLE ACTION FOR DAMAGES .
10 ACCORDING TO THE APPLICATION , THE APPLICANT IS CHALLENGING THE DECISION EMBODIED IN THE COMMISSION ' S TELEX MESSAGE OF 22 MARCH 1985 TO THE BOARD AND THE COMMISSION ' S REFUSAL IN THAT MESSAGE TO APPROACH THE THAI AUTHORITIES WITH A VIEW TO OBTAINING EXPORT CERTIFICATES IN RESPECT OF THE EXCESS QUANTITIES OF TAPIOCA UNLOADED IN AMSTERDAM . HOWEVER , ON THE VERY DAY ON WHICH THESE PROCEEDINGS WERE INSTITUTED , THE COMMISSION APPROACHED THE THAI AUTHORITIES . THOSE AUTHORITIES DREW UP THE EXPORT CERTIFICATES SOUGHT , WHEREUPON THE BOARD WAS ABLE TO ISSUE THE NECESSARY IMPORT LICENCES .
11 ACCORDINGLY , IN SO FAR AS THE CONTESTED TELEX MESSAGE CONSTITUTED A DECISION , IT WAS REVOKED BY THE COMMISSION ' S SUBSEQUENT DECISION TO TAKE THE STEPS SOUGHT BY THE APPLICANT .
12 FURTHERMORE , IT SHOULD BE NOTED THAT THE COMMISSION ' S SECOND DECISION FINALLY LED TO THE OUTCOME DESIRED BY THE APPLICANT , NAMELY THE IMPORTATION INTO THE COMMUNITY OF THE EXCESS QUANTITIES OF TAPIOCA AT THE PREFERENTIAL RATE . ACCORDINGLY , THEY ARE NO FURTHER ISSUES WHICH CALL FOR A DECISION BY THE COURT . THE MERE POSSIBILITY OF A SUBSEQUENT ACTION FOR DAMAGES IS NOT A FACTOR WHICH SUPPORTS THE CONCLUSION THAT THE ACTION FOR ANNULMENT STILL RETAINS ITS PURPOSE .
13 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION HAS BECOME DEVOID OF PURPOSE AND IT IS UNNECESSARY TO GIVE A DECISION .
Decision on costs
COSTS
14 UNDER ARTICLE 69 ( 5 ) OF THE RULES OF PROCEDURE , WHERE A CASE DOES NOT PROCEED TO JUDGMENT THE COSTS ARE TO BE IN THE DISCRETION OF THE COURT .
15 THE COURT CONSIDERS THAT , WITHOUT THERE BEING ANY NEED TO ASCERTAIN THE EXTENT TO WHICH THE SUBMISSIONS RELIED UPON IN SUPPORT OF THE APPLICATION WERE WELL FOUNDED , IT IS CLEAR FROM THE SPECIFIC CIRCUMSTANCES OF THE CASE AND FROM THE COURSE OF THE PROCEEDINGS , INCLUDING THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES , THAT THERE ARE SUFFICIENT GROUNDS TO ORDER THE PARTIES TO PAY THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS ,
THE COURT
HEREBY ORDERS :
( 1 ) IT IS UNNECESSARY TO GIVE A DECISION ON THE APPLICATION ;
( 2)THE PARTIES ARE TO PAY THEIR OWN COSTS , INCLUDING THE COSTS INCURRED IN CONNECTION WITH THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .
Full & Egal Universal Law Academy