Avis juridique important
Order of the President of the Court of First Instance of 12 September 2001. - Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co. v Commission of the European Communities. - Interim proceedings - Common organisation of the banana market - Allocation of import licences - Admissibility - Conditions for the grant of interim relief - Provisional nature of the relief sought. - Case T-139/01 R.
European Court reports 2001 Page II-02415
Parties
Grounds
Operative part
In Case T-139/01 R,
Comafrica SpA, residing in Genoa (Italy),
and
Dole Fresh Fruit Europe Ltd. & Co., residing in Hamburg (Germany),
represented by Mr. B. O'Connor, Solicitor, and Mr. P.B.G. Martin, Barrister,
applicants,
v
Commission of the European Communities, represented by Mr. X. Lewis and C. Van der Hauwaert, Members of its Legal Service, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for suspension of Commission Regulation (EC) No 896/2001 of 7 May 2001 laying down detailed rules for applying Council Regulation (EEC) No 404/93 as regards the arrangements for importing bananas into the Community and Commission Regulation (EC) No 1121/2001 of 7 June 2001 fixing the adjustment coefficient to be applied to each traditional operator's reference quantity under the tariff quotas for imports of bananas,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
GroundsLegal context
1 A common organisation of the market in bananas (banana COM) was established by Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1). Regulation No 404/93 introduced, as from 1 July 1993, a common import system to replace the various national systems which had previously operated.
2 Title IV of Regulation No 404/93, comprising Articles 15 to 20, deals with trade with third countries and provides for the opening of an annual tariff quota for imports of both third-country bananas and non-traditional bananas produced in the countries with which the Community has concluded the Lomé Convention (hereinafter ACP state(s) and ACP bananas). The terms traditional imports and non-traditional imports of ACP bananas are defined in Article 15a of Regulation No 404/93, which was inserted by Annex XV to 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. 1). Accordingly, 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, whereas quantities of bananas exported by ACP states in excess of the figures set out in that annex are designated non-traditional ACP bananas.
3 Following a number of successful procedures brought by Ecuador and the United States of America against the Community pursuant to the dispute settlement system of the World Trade Organisation (WTO), the Council adopted Council Regulation (EC) No 216/2001 of 29 January 2001 amending Council Regulation (EEC) No 404/93 on the common organisation of the market in bananas (OJ 2001 L 31, p. 3). Article 1 of Regulation No 216/2001 inserts new Articles 16 to 20, inclusive, into the text of Regulation No 404/93 as already amended by Council Regulation (EC) No 1637/98 of 20 July 1998 amending Regulation (EEC) No 404/93 on the common organisation of the market in bananas (OJ 1998 L 210, p. 28). It is clear from both the second and third recitals in the preamble to Regulation No 216/2001 and the fresh text of Article 16(1) of Regulation No 404/93 that the new Articles 16 to 20 of the latter are intended to apply from 1 July 2001 until 31 December 2005. The second recital in the preamble to Regulation 216/2001 envisages, with effect from 1 January 2006, the establishment of an import system founded on the application of a customs duty at an appropriate rate and application of a preferential tariff to imports from ACP countries.
4 Article 18 of Regulation No 404/93 provides:
1. Each year from 1 January the following tariff quotas shall be opened:
(a) a tariff quota of 2 200 000 tonnes net weight, called "quota A";
(b) an additional tariff quota of 353 000 tonnes net weight, called "quota B";
(c) an autonomous tariff quota of 850 000 tonnes net weight, called "quota C".
These tariff quotas shall be open for imports of products originating in all third countries.
The Commission may, on the basis of an agreement with World Trade Organisation contracting parties with a substantial interest in the supply of bananas, allocate tariff quotas "A" and "B" among supplier countries.
2. Imports under tariff quotas "A" and "B" shall be subject to customs duty of EUR 75 per tonne.
3. Imports under tariff quota "C" shall be subject to a customs duty of EUR 300 per tonne ... .
4. A tariff preference of EUR 300 per tonne shall apply to imports originating in ACP countries both under and outside the tariff quotas.
... .
5 Under the original text of Article 18(2), a tariff quota of ECU 850 per tonne applied to outside-quota third-country banana imports. Pursuant to the Uruguay Round of GATT negotiations, this has now been reduced to EUR 680 per tonne.
6 Article 19(1) of Regulation 404/93 provides that operators are to obtain licences to import third country bananas on the basis of traditional trade flows ("traditionals/newcomers") and/or other methods.
7 Under Article 20, indent (a), of Regulation No 404/93, the Commission is empowered to adopt, pursuant to the management committee system as prescribed by Article 27, rules on the management of the tariff quotas referred to in Article 18.
8 The detailed rules for the implementation of Title IV of Regulation No 404/93, as thus amended, have been established by Commission Regulation (EC) No 896/2001 of 7 May 2001 laying down detailed rules for applying Council Regulation (EEC) No 404/93 as regards the arrangements for importing bananas into the Community (OJ 2001 L 126, p. 6,). They entered into force on 1 July 2001 in accordance with Article 32 of Regulation No 896/2001.
9 The rules laid down in Regulation No 896/2001 replace the previous rules established initially pursuant to Regulation No 404/93 by Commission Regulation (EC) 1442/93 laying down detailed rules for the application of the arrangements for importing bananas into the Community (OJ 1993 L 142, p. 6, hereinafter the 1993 regime), which remained in force until 31 December 1998. It was then replaced, pursuant to Council Regulation No 1637/98, by Commission Regulation (EC) No 2362/98 of 28 October 1998 laying down detailed rules for the implementation of Council Regulation (EEC) No 404/93 regarding imports of bananas into the Community (OJ 1998 L 293, p. 32, hereinafter the 1999 regime), which entered into effect on 1 January 1999. The 1999 regime applied until the entry into force of Regulation No 896/2001. Under the 1993 regime, the allocation of licences had been based on the creation of three different categories of licences, which were further subdivided according to one of three different functions carried out by operators; i.e. direct imports, the release into free circulation as owners of green bananas, and the ripening and marketing of green bananas (see Article 3 of Regulation No 1442/93). It was implemented, at least as regards operators entitled to apply under Categories A and B, by reference to the three-year period preceding the particular year for which the tariff quota was opened (see Article 4(1) of Regulation No 1442/93). The categorisation of licences and their subdivision by reference to functions was, however, abolished under the 1999 regime. The latter regime was based on the actual quantities of bananas imported, i.e licence usage, during the period 1994 to 1996 (see Article 4 Regulation No 2362/98).
10 Article 2 of Regulation No 896/2001 provides that 83% of the tariff quotas referred to in Article 18 of Regulation No 404/93 are to be made available to "traditional operators" as defined in Article 3(1), with the remaining 17% being made available to "non-traditional operators" as defined in Article 6.
11 Title II of Regulation 896/2001, comprising Articles 3 to 21, concerns the management of tariff quotas. The present application being concerned only with the allocation of licences to traditional operators, it is unnecessary to consider Articles 6 to 12 which deal with non-traditional operators.
12 Traditional operators are defined in the first subparagraph of Article 3(1) of Regulation 896/2001 as economic agents, whether natural persons or entities having legal personality, individual agents or groups, established in the Community during the period for determining their reference quantities, who have, for their own account, purchased a minimum quantity of bananas originating in third countries from the producers or, where applicable, produced, consigned and sold such products in the Community. The operations carried out by such operators are, according to the second subparagraph of Article 3(1), hereinafter [to] be called "primary imports".
13 The rules concerning traditional operators are set out in Articles 4 and 5 of Regulation 896/2001. Article 4(1) provides:
The reference quantity for each traditional operator A/B who submits a written application no later than 11 May 2001 shall be established on the basis of the average of primary imports of third-country bananas and/or non-traditional ACP bananas during 1994, 1995 and 1996 taken into account for 1998 for the purposes of administering the tariff quota for imports of third-country bananas and non-traditional ACP bananas, in accordance with the provisions of Article 19(2) of Regulation (EEC) No 404/93 applicable in 1998 to the category of operators referred to in paragraph 1(a) of that Article.
Under Article 4(2), a similar reference period is established for traditional operator[s] C. However, their imports must have been carried out for 1998 as traditional quantities of ACP bananas. Pursuant to Article 4(3), the merger of different traditional operators does not preclude the merged entity from enjoying the same rights as those [of the] former operators which it comprises.
14 According to Article 5:
1. The Member States shall notify the Commission of the sum of the reference quantities referred to in Article 4(1) and (2) no later than 15 May 2001.
2. Using the information received under paragraph 1, and in light of the total quantities available under tariff quotas A/B and C, the Commission shall, where appropriate, set a single adjustment coefficient to be applied to each operator's reference quantity.
3. Where paragraph 2 applies, the competent authorities shall notify each operator of their reference quantity as adjusted by the adjustment coefficient not later than 7 June 2001.
.... .
15 The rules for issuing import licences are set out in detail in Articles 13 to 21 of Regulation No 896/2001.
16 Under Article 13(1), the quantities of the tariff quotas A and B provided for in Article 18(1)(a) and (b) of Regulation No 404/93 are to be added together and applications under those quotas are to be dealt with together. Article 13(2) precludes traditional operators A/B from submitting licence applications other than under tariff quota A/B, while traditional operators C are similarly limited to applying only under tariff quota C. In order to be allowed to submit licence applications under the other tariff quota, they must register[] as non-traditional operators for that quota.
17 Article 15(1) requires traditional operators to submit, during the first seven days of the month preceding the quarter for [which] the licences are being issued, licence applications to the competent authorities of the Member States which established the reference quantity ... . Those authorities are obliged by Article 16 to notify the Commission of the quantities covered by licence applications within two working days of the end of the application period and to specify, as regards the quantities requested, the detailed figures broken down for both tariff quota A/B and tariff quota C as between traditional and non-traditional operators. Under Article 18(1), the competent authorities must issue the relevant licences not later than the 23rd day of the month in which the application is made. Article 19 permits an operator, be it the holder or the transferee of a licence, to apply to use, in subsequent quarters of the year of issue of the original licence, any quantities covered by the licence which remain unused.
18 Article 20(1) permits the transfer to a single transferee operator of the rights arising under licences issued. However, Article 20(2)(a) limits the permissible options, as between traditional operators, to transfers under a single tariff quota, either A/B or C, as the case may be.
19 Article 22, the sole provision of Title III of Regulation No 896/2001, deals with imports occurring outside the tariff quotas.
20 Title V of Regulation No 896/01, comprising Article 28 to 30, sets out certain transitional arrangements.
21 Under Article 28(1), the available tariff quota A/B for the second half of 2001 is set at a total of 1 137 159 tonnes. Article 28(2) provides, first, that the reference quantity for each traditional operator established in accordance with Article 4 and after the application of Article 5(2) shall be multiplied by the coefficient 0,4454 in the case of traditional operators A/B ... and, secondly, that each operator is to be notified, not later than 7 June 2001, of its reference quantity, as adjusted by the adjustment coefficient.
22 Further to the information regarding the total reference quantities notified to the Commission by the relevant Member State authorities following the various applications made by individual traditional operators pursuant to Article 4 of Regulation No 896/2001, the Commission adopted Commission Regulation (EC) No 1121/2001 of 7 June 2001 fixing the adjustment coefficients to be applied to each traditional operator's quantity under the tariff quotas for imports of bananas (OJ 2001 L 153, p. 12). As the sum of the reference quantities notified for traditional operators A/B amounted only to a total 1 964 154 tonnes (see the second recital in the preamble to Regulation No 1121/201) while the total quota fixed under Article 18 of Regulation No 404/93 is 2 200 000 tonnes, the Commission, in accordance with Article 1(1) of Regulation No 1121/2001, fixed the adjustment coefficient provided for in Article 5(2) of Regulation No 896/201 for each traditional operator A/B at 1.07883.
23 Article 1(2) of Regulation No 1121/2001 provides that the precise reference quantity for each traditional operator for the second half of 2001 is to be determined by applying the adjustment coefficient to its reference quantity and then adjusting the figure thereby attained by applying to it the transitional coefficient laid down for that period in Article 28(2) of Regulation No 896/2001.
Background
24 On 4 October 2000, the Commission submitted a communication to the Council entitled Communication from the Commission to the Council on the "First Come, First Served" method for the banana regime and the implications of a "tariff only" system (COM (2000) 621 final) in which it advocated the adoption of an open market allocation system for licences to import bananas from third countries. This proposal was initially considered by the Council, on 9 October 2000, as provid[ing] a basis for settling the banana dispute, which now can and must be resolved rapidly. It called on the competent bodies to examine the technical aspects of the communication and on the European Parliament to adopt a position on the Commission's proposal (Council press release no. 12012/00 concerning the 2294th Council meeting, pp. 12-13).
25 Whilst the technical aspects of the aforesaid communication were being considered by both the relevant national authorities and the members of the Banana Management Committee, the Commission undertook negotiations with the trade representative of the United States of America with a view to resolving the ongoing trade dispute between that country and the European Community over the banana COM.
26 On 7 February 2001, shortly after the adoption by the Council of Regulation 216/2001, the Commission forwarded a communication to the European Parliament entitled Special Framework of Assistance for Traditional ACP Suppliers of Bananas (Council Regulation 856/1999) - Biennial Report from the Commission 2000 (COM (2001) 67 final). In section 4 of that communication, under the heading Amending the EU Regime following the WTO rulings, the Commission states:
Following detailed discussions with interested parties the Commission put forward a proposal to the Council to amend Regulation 404/93 in November 1999. This proposal included a transitional tariff quota system, with three quotas being established, prior to the introduction of a tariff only system by 2006 at the latest. During discussions with third parties it became evident that a system of quota management with licence distribution based on traditional trade flows with a historical reference period was the preferred option. After months of intensive discussions it seemed that a tariff quota system either based upon licences allocated on historical performance or auctioning would be difficult to achieve, and that the discussions on historical reference periods were at an impasse. Thus the Commission proposed in its Communication to the Council in July that the Commission should conclude its examination of the First Come, First Served (FCFS) method of quota management. This was accepted by the Council and in October 2000 following its assessment of the FCFS method, the Commission presented a further Communication to the Council indicating that it considered the FCFS method a viable option ... . The Communication was reviewed in the General Affairs Council of 9 October 2000 in Luxembourg. A formal Council position is expected once the European Parliament has expressed its opinion. An ACP-EU Joint Parliamentary Assembly resolution on the reform of the EU banana regime was made during its session in Brussels from 9 to 12 October.
27 On 11 April 2001, the Commission reached a consensus with representatives of the United States of America regarding the conclusion of the US-EU Banana Agreement, which included an understanding on bananas (the US-EU Agreement).
28 The US-EU Agreement provides (see paragraph C(1) thereof) for the implementation by the Community of an import regime based on historical licensing as set out in Annex I. Annex I envisages two phases. During Phase I, which became effective on 1 July 2001, the Community is required to combine its bound (fixed) tariff quotas A and B into one single annual bound tariff quota of 2 553 000 tonnes whereto the tariff applied must not exceed EUR 75 per tonne. It is also obliged thereunder to fix a bound tariff C quota of 850 000 tonnes. Some 83% of the import licences for the A/B quota are to be allocated to traditional operators based on each qualified traditional operator's 1994-96 average annual final reference volume ("reference volume") for the "A/B" quotas. The remaining 17% of the A/B quota licences are to be allocated to a new "non-traditional operator" category. The Agreement prohibits the use of C quota licences to import bananas under the A/B quota, and vice versa.
29 During Phase II, which will operate from 2002, the provisions of Phase I, among others, will continue to operate but the B element of the combined A/B quota is to be increased by 100 000 tonnes thus bringing the total available annual quota to 2 653 000 tonnes.
30 On 7 May 2001, the Commission adopted Regulation 896/2001 under which primary imports effected during the period 1994 to 1996 are employed as the basis for apportioning licences.
Facts and procedure
31 Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co (hereinafter, when referred to collectively, the applicants) are companies registered in Italy and Germany respectively. They are members of the Dole group of companies (Dole group), which is headed by the Dole Food Company Corporation, established in California (United States of America). The Dole group is engaged worldwide in the business of producing, processing, distributing and marketing, among other things, fresh fruit and vegetables, including bananas.
32 The applicants are registered as traditional operators in Italy and Germany in accordance with Article 3(1) of Regulation No 896/2001. Although they have their own management, staff and operations, they are commercially active on both their own account and that of the Dole group. In respect of Dole group banana imports into the European Community, the applicants are responsible, firstly, for direct imports in their own capacity as traditional operators and, secondly, as consignee agents of the group, for all sales of the bananas imported into the European Community by other members of the group or by other companies whose import licence entitlements have been acquired by the latter.
33 On 6 June 2001, the applicant Dole Fresh Fruit Europe Ltd and Co (Dole), was informed by the Bundesanstalt für Landwirtschaft und Ernährung (Federal Agriculture and Food Authority), the competent authority for the Federal Republic of Germany, of its share of the A/B tariff quota for traditional operators for the second half of 2001, as calculated in accordance with Regulation No 896/2001 and Regulation No 1121/2001.
34 On 8 June 2001, the applicant Comafrica SpA (Comafrica) was informed by the Ministerio del commercio con l'estero (Ministry of External Trade), the competent authority for the Italian Republic, of its share of the aforesaid A/B tariff quota for the second half of 2001, as calculated in accordance with Regulation No 896/2001 and Regulation No 1121/2001.
35 By application lodged at the Registry of the Court of First Instance on 19 June 2001, the applicants brought an action under the fourth paragraph of Article 230 EC and 231 EC seeking: firstly, the annulment of Regulation No 896/2001 and Regulation No 1121/201 (hereinafter collectively, the contested regulations) insofar as they themselves are affected thereby and, alternatively, the annulment erga omnes of those regulations; secondly, damages, pursuant to Articles 235 EC and 288 EC, for the damage caused to them by the wrongful adoption of the contested regulations and; thirdly, an order requiring the Commission to pay the costs.
36 By separate document lodged at the Registry of the Court of First Instance on 21 June 2001, the applicants applied, under Articles 242 EC and 243 EC for interlocutory relief in the form of an order suspending the contested regulations insofar as they themselves are affected thereby and, alternatively, a suspension with effect erga omnes. They have also applied for the costs of the interlocutory proceedings.
37 In view of the provisionally highly urgent nature of the application for interim measures, the oral hearing was fixed for 26 June 2001 and the Commission was not required to submit in advance any written observations on the application. None the less, on 25 June 2001, the Commission was in a position to notify a document containing written observations to both the Registry of the Court and the applicants. On 26 June 2001, this document was admitted to the case-file by decision of the President of the Court of First Instance.
38 The parties made oral submissions and answered various questions put to them by the President of the Court of First Instance at the hearing on 26 June 2001. During the oral hearing the applicants were given until 2 July 2001 by the President of the Court of First Instance to submit further written observations in reply to the written observations submitted by the Commission on 25 June 2001 and to provide further information regarding several of the oral questions he had addressed to them. The Commission, for its part, was requested to submit any further observations it wished to make by 5 July 2001.
39 Accordingly, the applicants submitted further observations on 2 July 2001, while, on 5 July 2001, the Commission lodged a reply to those observations, as well as to certain of the submissions made by the applicants during the oral hearing (hereinafter the further observations).
40 In the light of the further observations, the President of the Court of First Instance requested both parties to submit by 23 July 2001 answers to a number of separate additional written questions which were put to them by letter from the Registrar of the Court of First Instance of 10 July 2001 (hereinafter the written question(s)).
41 The Commission and the applicants submitted their answers to the written questions by letters of 20 and 23 July 2001 respectively.
42 In their further observations of 2 July 2001, the applicants have clarified the precise scope of the interim measures sought in their application. They are seeking a suspension erga omnes of the contested regulations with effect from the allocation of import licences for the fourth quarter of the year 2001. According to the information provided by the applicants at the hearing and not contested by the Commission, this allocation should normally take place around 30 September 2001 with the licences thereby allocated being effective from 7 October 2001 until 6 January 2002.
Law
43 Under Articles 242 and 243 EC 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 the circumstances so require, order that the application of the contested act be suspended or prescribe any necessary interim measures.
44 Under the first subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance, an application to suspend the operation of any measure adopted by a Community institution, made pursuant to Article 242 EC, is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. That rule is no mere formality but means that the main action, on which the application for interim relief depends, must be admissible (order of 15 June 2001 in Case T-339/00 R Bactria Industriehygiene-Service v Commission (Bactria), not yet reported in the ECR, paragraph 28).
45 As regards their content, Article 104(2) of the Rules of Procedure 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 sought. The measures applied for must be provisional, in that they must not prejudge the decision on the substance (see, in particular, the orders of the President of the Court of Justice in Joined Cases 76, 77 and 91/89 R RTE a.o. v Commission (RTE) [1989] ECR 1141, paragraph 12, and in Case C-313/90 CIRFS v Commission [1991] ECR I-2557, paragraph 24; and the orders of the President of the Court of First Instance in Case T-6/97 R Comafrica and Dole Fresh Food Europe v Commission [1997] ECR II-291, paragraph 21, and in Case T-230/97 R Comafrica and Dole Fresh Food Europe v Commission (Comafrica and Dole) [1997] ECR II-1589, paragraph 21).
46 Since the measures whose annulment, inter alia, is sought in the main proceedings are two Commission regulations, it is appropriate initially to verify that the admissibility of that action is not, at least provisionally, excluded.
Admissibility
Arguments of the parties
47 The applicants submit that they are both directly and individually concerned by the contested regulations. Since Article 4 of Regulation No 896/2001 permitted only those operators who had reference quantities which were taken into account for 1998, of which the applicants constitute two, to apply, by 11 May 2001, for licences, the group of operators thereby identified was not capable of being extended. The Community-wide reference quantity to which Article 4 refers is therefore made up of the sum of the various individual figures submitted by the Member States to the Commission following the expiry of the deadline for applications. In the present case, unlike the regulations considered by the Court of Justice in Case C-73/97 P France v Comafrica and Dole Fresh Fruit Europe [1999] ECR I-185 (France v Comafrica and Dole), the Commission was aware, prior to fixing the adjustment coefficient in Regulation No 1121/2001, of the reference quantities for each operator which had applied by the abovementioned deadline, since they were fixed by reference to imports effected in the 1994 to 1996 reference period. Upon publication of the adjustment coefficient in Regulation 1121/2001, the precise licence entitlement of each applicant operator became known. Consequently, the applicants contend that they are individually concerned by the allocation system established by the contested regulations. They are also directly concerned as the national authorities have been given no discretion in the contested regulations either to adjust or to correct the figures for individual applicants.
48 The Commission contests, having regard to the approach adopted by the Court of Justice in France v Comafrica and Dole, the admissibility of the main action. It has, however, declined to make detailed submissions on the issue since, it submits, this is a matter which may be raised by the Court of its own motion.
Findings of the President of the Court of First Instance
49 It is settled case-law that the issue of the admissibility of the main action
should not, in principle, be examined in interlocutory proceedings in order to avoid prejudging that action. None the less, since the application for interim relief is related to the main action, it is appropriate, where it is contended that the latter is manifestly inadmissible, to establish whether there exist any grounds for concluding provisionally in favour of its admissibility (see the orders of the President of the Court of Justice in Case 376/87 R Distrivet v Council [1988] ECR 209, paragraph 21, and in Case C-300/00 P(R) Federacíon de Confradías de Pescadores de Giupúzcoa and Others v Council [2000] ECR I-8797, paragraph 34; and the order of the President of the Court of First Instance in Case T-339/00 R Bactria, paragraph 73).
50 In the present case, the doubts expressed by the Commission regarding admissibility relate only to the part of the main action that concerns the application for annulment of the contested regulations. There is, indeed, no reason to doubt the admissibility of that action insofar as the applicants are seeking damages under Articles 235 and 288 EC. Regarding the applicants' alleged lack of standing in respect of their action under Article 230 EC, the approach adopted by the Court of Justice in France v Comafrica and Dole is clearly of particular relevance.
51 In France v Comafrica and Dole, the Court of Justice upheld an appeal against the earlier finding of the Court of First Instance in Case T-70/94 Comafrica and Dole Fresh Fruit Europe v Commission (the contested judgment) [1996] ECR II-1741 that an action similar to that brought in the main action in this case was admissible. The applicants contend that the circumstances of the present case are distinguishable from those considered by the Court of Justice in that case. It is appropriate therefore to consider the prima facie merits of this submission.
52 According to the applicants they are directly and individually concerned by the contested regulations because neither the Commission nor the competent authorities of the Member States is allowed any discretion in Regulation No 896/2001 regarding the determination of the reference quantities used as the basis for calculating, in the light of the total available A/B tariff quota, the tonnage of bananas which each operator is to be permitted by licence to import. The adjustment coefficient was designed merely to take account of any shortfall between the total available quota and global reference quantity based on the sum of all the licence applicants' individual figures for the reference period caused by the possible decision of certain traditional operators not to apply in that capacity under Regulation No 896/2001. Once the said coefficient was fixed by the Commission in Regulation No 1121/2001, the precise licence entitlement of each traditional operator who had submitted an application under tariff quota A/B was known. It is thus alleged that the contested regulations constitute, in respect of those operators, who include the applicants, a bundle of individual decisions whose validity may be challenged, inter alia, by the latter.
53 In order to ascertain whether the applicants have established, at least prima facie, grounds for concluding that their annulment action is not manifestly inadmissible, it is necessary to consider whether the contested regulations may, in effect, be regarded as amounting to a bundle of individual decisions. It is appropriate, in this regard, to consider particularly the Court of Justice's interpretation in France v Comafrica and Dole of the notion of individual concern. The Court of Justice stated, in relation to the 1993 regime, that, since, under the relevant implementing Commission regulations, the figures notified to the competent authorities [could] be altered several times in the course of the procedure before the reduction coefficient is fixed, without the alterations made by the competent authorities or the Commission being brought to the attention of the operators concerned, each operator was therefore not able to ascertain ... the reference quantity to which the reduction coefficient [was] to be applied (paragraphs 30 and 31). It held that the Court of First Instance had therefore erred in finding at paragraph 41 of the contested judgment that the principal contested regulation in that case "inform[ed] each operator concerned that the quantity of bananas it was entitled to import under the tariff quota for the year 1994 [could] be determined by applying the stated uniform reduction coefficient to its reference quantity" and that the said regulation thereby "[enabled] each operator to ascertain his own precise entitlement by applying that coefficient to the reference quantity already allocated to him" (paragraph 32).
54 For the purposes of the present application, the applicants have made out a plausible case that Regulation No 896/2001 creates a wholly closed system under which the reference quantities of each operator qualified to apply as a traditional operator for the purpose of tariff quota A/B have been fixed by reference to direct-import figures for an earlier, and a priori, immutable reference period. The mere fact that the precise quantities ultimately allocated by the relevant Member State authorities to applicant operators may still vary from one quarterly period to the next under the system established by that regulation, depending on the precise number of the closed category of qualified traditional operators who actually apply in any given quarter, does not, at least on a prima facie analysis, undermine the closed nature of the system thereby established. In its judgment of 12 July 2001 in Comafrica and Dole Fresh Food Europe v Commission (Joined Cases T-198/95, T-171/96, T-230/97, T-174/98 and T-225/99, not yet reported in the ECR, hereinafter Comafrica and Dole v Commission), the Court of First Instance, applying the principles laid down by the Court of Justice in France v Comafrica and Dole, held that the licence-allocation systems established under the 1993 and 1999 regimes could not be analysed as a bundle of individual decisions. This finding is based essentially on the fact that, under those regimes, the Commission play[ed] an important role, jointly with the competent national authorities in checking and correcting individual reference quantities of operators in order to eliminate cases of double counting (paragraph 103) and on the Court of First Instance's view that the purpose of the Commission's fixing of the adjustment coefficient was not to decide on the treatment of individual applications lodged with the national competent authorities but ... to address the objective factual situation of an excess of the total Community reference quantity over the tariff quota (in the 1993 regime) and over the tariff quota and traditional ACP bananas (in the 1999 regime) (paragraph 106). In the present case, contrariwise, it cannot be excluded that the complete absence of any possibility for checking the figures submitted, coupled with the wholly closed nature of the category of permissible applicant operators, sufficiently differentiates the allocation system established by the contested regulations from the regimes considered in France v Comafrica and Dole or Comafrica and Dole v Commission.
55 As regards direct concern, it would seem, even from a provisional assessment of the contested regulations, that, just as with the regimes considered by the Court of First Instance in Comafrica and Dole v Commission (see paragraphs 96 to 98), the competent national authorities have no discretion in the present case as to the calculation of either reference quantities or individual licence entitlements of applicant operators. The contested regulations would appear likely to affect the applicants directly.
56 Consequently, it cannot be ruled out that the applicants are directly and individually concerned by the contested regulations and, since their interest in challenging them is manifest, it is appropriate provisionally to conclude that they have sufficient standing to bring an action for their annulment under the fourth paragraph of Article 230 EC.
57 As the applicants' submissions regarding the urgency of their application are, in large part, based upon their assertion that they have established the existence of a very strong prima facie case, it is appropriate first to consider the provisional merits of the pleas of fact and law that they have presented to the judge hearing the interim application.
The existence of a prima facie case
Arguments of the parties
58 In support of the prima facie merits of their interim application, the applicants rely on several of the pleas advanced in their annulment application in the main action.
59 They claim, firstly, that the Commission has unlawfully discriminated against them by deliberately relying in the contested regulations upon a reference period during which the figures used, i.e. those for direct primary imports, contained significant inaccuracies, thereby favouring operators who, unlike the applicants, submitted inflated licence-application claims during that period. Secondly, they contend that the Commission has misused its powers under Regulation No 404/93 to manage the banana COM. Since Regulation No 896/2001 so closely mirrors the US-EU Agreement, they assert that the ending of the banana dispute with the United States of America, rather than the proper management of the banana COM through the implementation of a fair and equitable system for allocating import licences, constituted the principal motivation underlying the adoption of the contested regulations. Finally, they submit that, by opting for the use of figures it knew to be fraught with inaccuracies, without reserving for itself the possibility of correcting them, the Commission has infringed the principle of proportionality. Moreover, the inappropriateness of the system adopted by the contested regulations is demonstrated by the fact that more equitable ways of managing the banana COM, such as the use of the First Come, First Served principle, were available.
60 The applicants consequently contend that they have such a strong prima facie case as to the egregious illegality of the contested regulations that there is, in effect, no alternative but to order the suspension sought. In 1994, the applicants claim that the level of inaccuracy in the figures for direct primary imports was around 57%. Whilst accepting that the level of overclaims fell during the period so as to reach an average over the three years concerned of around 23%, such a level of error is wholly unacceptable. Since it knew that the level of inaccuracy for 1994 was especially high and as the figures for 1997 were far more accurate than those for 1994, good administrative principles should, at least, have led the Commission to use the years 1995 to 1997 as a reference period.
61 In their replies to the written questions, the applicants submit that the illegality of the contested regulations is further emphasised by Comafrica and Dole v Commission. The Court of First Instance held, as regards a number of the previous Commission regulations implementing Regulation 404/93, that it had done its best to eliminate overclaims in relation to the reference years concerned in those cases (1995 to 1999) and that its performance, in this respect, improved overtime. However, under Regulation No 896/01, the Commission, in contrast to the regulations considered in Comafrica and Dole v Commission, has precluded all possibility of continuing with such efforts.
62 The Commission denies that the applicants have established the existence of a prima facie case, let alone a strong one. During the oral hearing, it vigorously defended, in particular, the propriety of the policy choice underlying Regulation No 896/2001 to allocate import licences on the basis of the figures for direct imports of bananas for the years 1994 to 1996. It submitted that the settlement of the ongoing trade dispute with the United States of America constituted merely one of the parameters which had influenced the decision to adopt the contested import-licence allocation system. The Commission sought, through the adoption of the contested regulations, to strike a balance especially between traditional and non-traditional operators and to eliminate the flaws which, according to the findings of several WTO dispute-resolution panels, had existed under the licence-allocation systems previously implementing Regulation No 404/93.
63 Although not denying the existence of overclaims in the direct-import figures forming the basis of the reference period chosen and especially in those for 1994, the Commission submitted at the oral hearing that 1997 was not chosen instead of 1994 because no data in respect of primary imports existed in respect of the former. In its further observations, the Commission contends that 1994 to 1996 was therefore the last, verified triennial period available and, among the potential available periods, the one with the most reliable figures in terms of reduction coefficients. It remains confident that the degree of overclaims involved is 11.24% rather than around the average figure of 23% claimed by the applicants. The choice of 1994 to 1996 as a reference period, together with the selection of the figures for primary imports during that period, was thus an objectively justified criterion for apportioning licences (see the judgment of 20 March 2001 in Case T-18/99 Cordis v Commission, not yet reported in the ECR, paragraph 77).
Findings of the President of the Court of First Instance
64 The task of the judge hearing an application for interim relief when assessing whether there exists a prima facie case is not to give a final decision on the substance of the dispute. He must, however, be satisfied, having regard to the individual circumstances of the case, that the arguments put forward by the applicant are sufficiently serious such that they cannot be dismissed at that stage in the procedure without a more detailed examination and that they provide prima facie justification for ordering the interim relief sought (Case 56/89 R Publishers Association v Commission [1989] ECR 1693, paragraph 31 and Case C-149/95 P(R) Commission v Atlantic Container Line [1995] ECR I-2165, paragraphs 26 and 27).
65 In the present case, two of the pleas advanced by the applicants appear, at least on a preliminary analysis, to raise serious doubts concerning the validity of the contested regulations and could, thus, justify granting the interim measure sought.
66 The first concerns the plea alleging discrimination. The applicants contend that the Commission, by basing the contested regulations on licence-application figures for a reference period during which there was a far from insignificant level of overclaims, albeit not necessarily of a fraudulent nature, has, even using the Commission's own figures, accepted average errors of over 11%. This has created a licence-allocation system favouring, until the end of 2005, those operators who submitted inflated claims during that reference period to the detriment of those who, like the applicants, submitted accurate claims.
67 Whilst a detailed analysis of this plea is manifestly beyond the scope of the present interlocutory proceedings, the applicants have established a case which merits detailed consideration in the main action. Even having regard to the Commission's submission at the oral hearing that it would have been almost impossible for it to have eliminated all errors in the figures used, particularly those for 1994, it is difficult, at least provisionally, to envisage how a 10% to 11% level of error could be deemed acceptable as the basis for the import-licence allocation system chosen, especially when it is clear, as the Commission accepted at the oral hearing, that other alternative bases, such as a system founded upon the First Come, First Served principle, were available. This is a fortiori the case where no possibility has been retained by the Commission of verifying whether the grant of licences to individual operators by reference to such partially flawed figures would, in fact, justified.
68 This view cannot affected by the finding of the Court of First instance in Comafrica and Dole v Commission, in respect of the application for damages brought in Case T-225/99, that acceptance of an alleged discrepancy of between 3 or 4% by the Commission in respect of the first year of the 1999 regime did not necessarily amount to proof of a lack of care or diligence on the latter's part, since a certain margin of error was inevitable (paragraph 148). It is not possible provisionally to conclude for the purposes of the present interim proceedings, as the Commission contends, that a level of error of around 11% is inevitable and that it would therefore have been effectively futile for the contested regulations to have retained some possibility for the Commission to check the figures used as the basis for the reference quantities applied for by individual applicant operators. Such a finding may only be made by the court hearing the main action after a full examination of the various competing figures, other relevant evidence and arguments advanced by the parties.
69 The applicants have also made out a provisional case that the Commission has misused its powers, particularly under Article 20 of Regulation No 404/93, by adopting the contested regulations for the predominant purpose of resolving the trade dispute, to which reference is made in the fifth recital in the preamble to Regulation No 896/2001, with the United States of America rather than with the general objective of properly implementing the banana COM. Notwithstanding the Commission's oral submission that the resolution of that trade dispute constituted merely one of the parameters taken into account when Regulation No 896/2001 was adopted, the applicants have made out a plausible case that this parameter was effectively considered, at the expense of the proper administration of the banana COM, to be decisive.
70 The applicants base their case in this respect on the contemporaneity of the conclusion of the EU-US Banana Agreement and the proposal and adoption of Regulation 896/2001, on the one hand, and the concomitant abrupt abandonment by the Commission of its previous preference, as approved by the Council in its resolution of 9 October 2000 (see paragraph 20 above) and to which reference is made in the second recital in the preamble to Regulation No 216/2001 (see paragraph 3 above), for a system based on the First Come, First Served principle on the other. They also rely on the very close similarity between the EU-US Banana Agreement's objectives and those of the system established by the contested regulations. In these circumstances, it cannot be excluded that the applicants have raised serious questions concerning the propriety of the method of licence-allocation system chosen in the contested regulations.
71 None the less, notwithstanding the strong language used by the applicants in its application regarding the alleged misuse of powers by the Commission, it is not possible, having regard particularly to the broad disagreement between the parties as to the precise level of the overclaims that occurred during the reference period, especially in 1994, and to the margin of appreciation undoubtedly enjoyed by the Commission under Article 20 of Regulation No 404/93 in respect of the assessment of what lies in the best interest of the banana COM, to conclude that the applicants have demonstrated the existence of such a strong prima facie case as might render it appropriate to grant interim relief without the need to demonstrate urgency.
72 Accordingly, it is necessary to consider the urgency of the applicants' application and, if appropriate, whether the balance of interests involved in this case would favour the grant of the suspension now sought (see paragraph 42 above) uniquely on the basis that they have succeeded in establishing, in accordance with the requirements of Article 104(2) of the Rules of Procedure, the existence of a prima facie case.
Urgency and the balance of interests
Arguments of the parties
73 The applicants submit that, although the implementation of the contested regulations will not cause them, or indeed the Dole group more generally, to go into liquidation, they will, nevertheless, suffer grave and irreparable harm over the next five-and-a-half years as a result of the operation of those regulations. Their turnover in bananas amounts on average to 21% of the Dole Group's total banana turnover, which itself represents 10% of that group's total turnover. They submit that they will lose about [...%] of the licences they enjoyed under the previous system, while the loss of licences to the Dole group as a whole will be around [...%], amounting to some [...] million boxes of bananas. Whereas the Dole group by the first half of 2001 enjoyed a [...%] market share in respect of third-country banana imports under the system established by Regulation No 2368/98, their share will decrease to [...%] under the system established by the contested regulations. This represents a decrease of approximately 36% which, according to the applicants, is more than significant in an industry which operates with margins of less than 6%. Not only will this result in a significant scaling down of the Dole group's banana activities in Europe but, more significantly, it will cause a number of the applicants' larger chain-supermarket customers to switch suppliers, as guaranteed continuity of supply, which they will no longer be in a position to offer, is a vital criterion for such customers. Once such customers have been lost it will be extremely difficult to regain them.
74 Even if they are later successful in their action for damages under Articles 235 EC and 288 EC, any financial compensation obtained would be inadequate as a significant amount of their market share will by then have been lost irretrievably. They contend that interim measures should be granted where damages would, as in their view in the present case, be an inadequate remedy (Joined Cases 113/77, 119/77 and 121/77 NTN Toyo v Council [1977] ECR 1721).
75 Furthermore, they submit that they are not in a position significantly to mitigate the losses which will be caused by the operation of the contested regulations. It was possible for them to mitigate the damage for them resulting from the creation of different categories of licence under the 1993 regime by investigating in acquiring or establishing contractual relationships with operators holding category B licences. Those operators continued to hold Category B derivative licences under the 1999 regime as, according to the applicants, the 1999 regime abolished de jure but not de facto those B licences with the result that they were able to continue developing links with such operators under that regime. However, these possibilities have, they contend, been drastically reduced if not eliminated by the contested regulations. Only operators who actually operated as primary importers during the reference period now qualify to apply as traditional operators under the new system. Thus, many of the operators with whom the applicants entered into relationships under the previous system, thereby even managing to increase their share of the third-country banana import market, no longer hold licences and the value of their investments in such relationships has been significantly reduced.
76 Furthermore, the applicants submitted at the oral hearing, without being contradicted on this point by the Commission, that the total number of operators qualifying as traditional operators has been reduced by the contested regulations from upwards of 800 to approximately only 200. Since the purpose of Regulation No 896/01 is to give licences to banana producers themselves or to first purchasers from such producers (i.e. the shippers), most qualified operators are now either producers or shippers with direct contractual arrangements with producers and are thus unlikely to sell or transfer licences to the applicants pursuant to Article 20 of that Regulation. Those operators will, consequently, have little need of the Dole group's spare shipping capacity to transport their bananas to the European Community and will, for the most part, be unwilling to purchase the bananas which the applicants can no longer import into the European Community.
77 As regards the seriousness of the damage allegedly resulting from the contested regulations, the applicants argue in their further observations, in response to an oral question posed at the hearing, that, although the right to apply for interim measures is limited to circumstances where an applicant seeks to protect his own interest, that requirement is satisfied in the present application. This is because the reference to the loss and damage that may be suffered by the other Dole group undertakings should not be construed as a reference to abstract disadvantages for third parties (Case 142/87 R Belgium v Commission [1987] ECR 2859). First, the Dole group's banana production is highly vertically integrated and comprises the production, consignment, importation and sale of bananas. Secondly, the applicants are not only traditional operators within the meaning of Article 3(1) of Regulation No 896/01 but are also consignee agents on behalf of the Dole group for the European Community and, consequently, commercially responsible for the sale of all of the latter's European Community banana imports. The applicants will thus suffer serious and irreparable harm as a result of the operation of the contested regulations, which harm will have direct, immediate and serious effects on the Dole group. In these circumstances, they submit that it would be excessively formalistic to insist on all of the other concerned Dole-group companies instituting separate legal proceedings (Case 294/81 Control Data v Commission [1983] ECR 911, paragraph 10).
78 In their answers to the written questions, the applicants contend that, under the system established by the contested regulations, and contrary to the submission made by the Commission at the oral hearing, no spot market in banana licences, such as that which existed under the 1993 and 1999 regimes, will continue to exist. There will, instead, merely remain the possibility of selling bananas on an ad hoc basis. The applicants admit that they expect, in mitigation of their total losses, to be in a position to sell, on that basis in 2001, about [...] million boxes of the excess banana production which the Dole group will have this year as a result of the entry into force of the contested regulations.
79 Moreover, it would, from an economic perspective, be impossible to seek further mitigation of their loss of in-quota licences under the contested regulations by importing bananas outside of the quota pursuant to Article 22 of Regulation No 896/01. As the over-quota tariff for banana imports is currently EUR 680 per tonne, which amounts in United States dollars, the normal currency of the international banana trade, to approximately USD 10.80 per box, and as the cost of a landed box is on average USD 9.50 per box, this would give a total cost of USD 20.30. According to the applicants, the best Community market is in Germany where the market price for a box at an equivalent marketing stage averages throughout the year at DEM 26 (approximately USD 11.50). It is not possible to sell boxes at an average customs cleared cost price of USD 20.30 in a market where the average price is USD 11.30. To replace the Dole group's total loss of in-tariff banana licences on this basis would cost the group USD [...] million on an annual basis, which, given its revenues of USD 68 million in 2000, would constitute an outlay that could not be sustained until judgment in the main action.
80 Finally, the applicants submit that the balance of convenience favours granting the suspension sought. Although it would have serious consequences for the administration of the banana COM and would necessitate the adoption of a new licence-allocation regime, the Commission would have sufficient time before 7 October 2001, as the speed with which the contested regulations were proposed and adopted demonstrates, to put the required new arrangements into place. Notwithstanding the margin of discretion enjoyed by the Commission in adopting the contested regulations, the fact that it has relied upon significantly incorrect figures as a reference criterion and allowed for no possibility of correcting those figures means that the balance of convenience in this case favours granting the suspension sought.
81 The Commission disputes the supposedly serious and irreparable nature of the harm likely to be suffered by the applicants as a result of the application of the contested regulations. The application does not disclose potential damage that is likely to be serious having regard to the size of the group to which the applicants belong. According to the Annual General Report of the Dole Food Company for the year 2000, its worldwide turnover that year amounted to USD 4 763 000 000 and this generated a net income of USD 68 000 000. Furthermore, its global turnover in bananas came to USD 1.4 billion that year.
82 The potential loss of supermarket customers is, in the Commission's opinion, as easily compensated today as it was in late 1997 when the same applicants' interim measures application in Comafrica and Dole was rejected. Moreover, the applicants have not demonstrated how an adjustment of the reference quantities, following a judgment in the applicant's favour in the main action, would not provide an adequate basis for a remedy for any loss suffered in the meantime.
83 In its further observations, the Commission contends that the applicants have failed, despite the various opportunities given to them, to provide concrete evidence demonstrating that the degree of harm which they are likely to suffer is such that it would potentially constitute a danger to their existence. They may not rely, in this respect, on their supposed functional links with the other members of the Dole group, since, in terms of the banana COM, the Dole group does not exist as the various Dole companies have been registered in their own right and must, in accordance with Articles 3(1) and 10(1) of Regulation No 896/2001, act on their own account.
84 Furthermore, the applicants can mitigate their losses, in particular by applying under both tariff quota A/B and C, by acquiring licences under Article 20 of Regulation 896/2001 and by supplying and transporting bananas for other operators holding licences but lacking in sufficient capacity. In its replies to the written questions, the Commission points out that Article 4(1) and (2) of Regulation 896/201 does not prevent operators from registering under both tariff quotas A/B and C, provided they meet the respective requirements of both those paragraphs; i.e. they must have effected imports of third country and non-traditional (dollar) bananas and of traditional ACP bananas during the period 1994 to 1996. The Commission observes, in this respect, that both Comafrica and Compagnie Fruitière - a company which according to the applicants belongs to the Dole group - are registered as traditional A/B and C operators. It also maintains its view, expressed initially at the oral hearing, that a limited Community spot market in bananas will continue to exist, particularly as regards bananas grown in Ecuador where a large number of relatively small banana producers continues to exist.
85 As regards the balance of convenience, the Commission contends that the potentially serious consequences for the administration of the banana COM which would result if the suspension sought by the applicants were ordered justifies the maintenance in force of the contested regulations until judgment in the main action. The need to eschew encroaching upon the core power of the Commission to manage the import regime of the banana COM has, moreover, been recognised in paragraph 37 of the order in Comafrica and Dole. The consequences for other qualified traditional operators who, unlike the applicants have not challenged the contested regulations, as well as the Community's more general interest in maintaining the resolution of the trade dispute with the United States of America also justify refusing the suspension sought.
Findings of the President of the Court of First Instance
86 The applicants rely on five essential types of loss: (i) the reduced revenues resulting from an alleged loss of around [...%] of the licences that they enjoyed under the 1999 regime; (ii) the more general loss of revenues for the Dole group as a whole resulting from its overall loss of licences for which they, as consignee agents, claim to be financially responsible; (iii) other losses resulting from the (i) and (ii) such as increased per-unit transport costs resulting from having fewer bananas to transport on their ships and unload at their port facilities in Livorno, Italy, as well as losses resulting from the inability to dispose of surplus banana production (iv) the devaluation of their investments in operators holding former Category B licences or licence derivatives under, respectively, the 1993 and 1999 regimes; (v) the loss of large supermarket customers within the European Community resulting not only from the direct loss of licences but also from the fact that the said losses will continue more or less fully until the adoption of a definitive regime with effect from 1 January 2006.
87 The urgency of an application for interim relief must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the relief (orders in Case C-329/99 P(R) Pfizer Animal Health v Council [1999] ECR I-8343, paragraph 94 and Case C-471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I-2865 (Cambridge, paragraph 107). It is for the party who pleads serious and irreparable damage to prove its existence (order of the President of the Court of Justice in Case C-278/00 R Greece v Commission [2000] ECR I-8787, paragraph 14, and the order of the President of the Court of First Instance of 28 May 2001 in Case T-53/01 R Poste Italiane v Commission, not yet reported in the ECR, paragraph 110). It is enough for the harm, particularly where it depends on the occurrence of a number of factors, to be foreseeable with a sufficient degree of probability (see the orders of the President of the Court of Justice in Case C-335/99 P(R) HFB and Others v Commission [1999] ECR I-8705, paragraph 67, and in Cambridge, paragraph 108; and the order of the President of the Court of First Instance of 1 August 2001 in Case T-132/01 R Euroalliages a.o. v Commission (Euroalliages), not yet reported in the ECR, paragraph 61).
88 In the present case, the Commission contests the serious nature of the harm which the applicants may suffer as a result of the operation of the contested regulations. However, having regard in particular to the [...%] loss in licences which the latter claim will be lost in their capacity as traditional operators, to the loss of supermarket customers which the applicants, in their further observations, submit has already occurred in Germany and is about to commence in the United Kingdom and to the applicant's assertion, uncontradicted by the Commission, that such a loss, in an industry where profit margins are less that 6%, is more than significant, the possibility that the applicants will suffer a serious loss cannot be excluded (Euroalliages, paragraph 62).
89 However, it has consistently been held that damage of a purely financial nature cannot in principle be regarded as irreparable, or even as being irreparable only with difficulty, if it can ultimately be the subject of financial compensation (orders in Comafrica and Dole, paragraph 32, Cambridge, paragraph 113, and in Bactria, paragraph 94). This case-law is based on the premiss that damage of a financial nature that is not eliminated by the implementation of the judgment in the main action constitutes an economic loss which may be made good by the means of redress provided for in the Treaty, in particular Articles 235 EC and 288 EC (orders in Comafrica and Dole, paragraph 38, and in Euroalliages, paragraph 66).
90 In the present case, even if it is assumed, due to the particularly highly integrated nature of the banana industry and the pivotal role played by the applicants in respect of Dole group banana imports into the European Community, that the applicants may rely upon the alleged losses incurred by that group as a whole consequent upon the operation of the contested regulations, it is clear that all of the relevant damage is purely financial in nature. It is therefore necessary to consider whether any of it would not be reparable if the applicants were successful in the main action.
91 The alleged loss of revenues flowing from the reduction in licences relied upon by the applicants and the directly associated losses, such as additional transport and landing costs, are quantifiable and thus, in principle, reparable. The same is true for the alleged diminution in the value of their investments in companies holding B licences or B-licence derivatives. It is clear that the means of redress provided for in the Treaty permit, in principle, the applicants to seek redress for all such losses. Moreover, having regard to the size of the Dole group, such losses cannot be regarded, as the applicants have themselves admitted, as being so serious as might jeopardise either their own continued existence or that of the said group.
92 The applicants maintain, however, that the reduced number of their licences has already caused them to lose vital chain-supermarket customers, which losses will progressively increase as it becomes clearer to such customers that they are no longer in a position, as a result of the reduction in the number of their licences effected by the contested regulations, to guarantee adequate continuing supplies. While the applicants admit that they may be able, firstly, to obtain a certain number of additional licences by way of transfers effected pursuant to Article 20 of Regulation No 896/2001 and, secondly, to purchase some bananas either from smaller Ecuadorean producers holding licences or on the allegedly now ad hoc spot market for banana imports into the European Community, such mitigatory measures will not, they contend, permit the maintenance of anything near the level of imports attained by them under the 1999 regime.
93 The Commission claims that such losses are no more irreparable now than they were when similar losses were claimed in Comafrica and Dole. Furthermore, it denies that the means now available to the applicants for obtaining, if necessary, additional bananas for their larger Community-based customers are inadequate.
94 It is settled case-law that if the implementation of a measure whose annulment is sought in the main action may cause irreversible market developments on a market on which the applicant is already present, the losses which would thereby ensue for the applicant, though financial in nature, may nevertheless exceptionally be regarded as irreparable for the purposes of granting interim relief (see the orders of the President of the Court of Justice in RTE a.o. v Commission, cited above, paragraph 18; and the orders of the President of the Court of First Instance in Case T-24/92 R and T-28/92 R Langnese-Iglo and Schöller Lebensmittel v Commission [1992] ECR II-1839, paragraph 29, in Comafrica and Dole, paragraph 39, in Case T-260/97 Camar v Commission and Council [1997] ECR II-2357, paragraph 42, confirmed on appeal by the order of the President of the Court of Justice in Case C-43/98 P(R) Camar v Commission and Council, and in Case T-342/00 R Petrolessence et SG2R v Commission [2001] ECR II-67, paragraph 48).
95 In his order in Comafrica and Dole, the President of the Court of First Instance found that the allegedly irreparable nature of the harm that would supposedly be caused to the applicants' relationships with supermarket chains as a result of the operation of the regulation whose validity was contested in the main action in that case [could]not be accepted as substantiating the irreparable nature of the alleged damage (paragraph 39). He continued in the following terms:
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 ... 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.
96 In light of the highly contradictory submissions from the parties and particularly those regarding the possibility for the applicants to obtain additional licences pursuant to Article 20 of Regulation No 896/2001 or by applying under tariff quota C, it is not possible, in the context of the present interim proceedings, to determine from the information available on the case-file the extent to which, as result of the effective fixing in the contested regulations of the applicants' licence allocation until the end of 2005, they could thereby suffer irreparable harm through the irretrievable loss of important customers (order in Case T-13/99 Pfizer Animal Health v Council [1999] ECR II-1961, paragraph 161). Far from demonstrating the existence of an undeniable urgency, the applicants have not established with the requisite degree of probability, whether it be in their initial application, their oral submissions, their further observations or in their replies to the written questions, that their position on the Community banana market will, via the loss of chain-supermarket customers, be irreparably undermined by the time judgment is given in the main action. In particular, they have not specified what precise share of the European Community market in the retail sale of third-country bananas they risk losing as a result of the feared departure of such customers to their competitors. Since it is for the applicant to establish with a sufficient degree of probability the occurrence of the irreparable harm claimed, the application in the present proceedings thereby falls to be rejected.
97 In any event, even if it were to be presumed on the basis of the alleged differences between the circumstances of the present application and those underlying the application considered by the President of Court of First Instance in his order in Comafrica and Dole, and particularly the allegedly greater inability of the applicants in the present case to offset their loss of licences by acquiring licences from other operators, that irreparable harm might indeed be caused to their relationships with chain-supermarket customers, such harm would still not suffice to justify granting the interim measure sought.
98 It is clear from the case-law cited in paragraph 45 above that interim measures should not be adopted where they would not be provisional in nature but would produce effects similar to those sought by the main action. In the present case, the applicants, in response to a question posed at the oral hearing, did not deny that the adoption of an interim measure of the nature of the measure sought in these proceedings, namely the suspension erga ones of the contested regulations with effect from third quarter of this year until judgment in the main action, would have definitive effects by requiring the Commission to adopt a new system of licence allocation, the effects of which could not be undone if the applicants were later unsuccessful in their annulment action. They argued, however, that the grant of the relief sought was, in the present case, exceptionally justified on account of the manifestly illegal nature of the contested regulations.
99 However, the applicants have not succeeded in establishing a particularly strong prima facie case (see paragraphs 71-72 above). Furthermore, not having demonstrated the existence of an undeniable urgency, they have failed to establish with sufficient certainty that their position on the Community banana market will irretrievably be undermined prior to judgment being given in the main action. Consequently, there are no exceptional circumstances which would justify, in the present interim proceedings, granting the suspension sought (order in Case C-393/96 P(R) Antonissen v Council and Commission [1997] ECR I-441, paragraph 41).
100 Finally, even if it were necessary to consider the balance of interests in the present case, it would be clear that the interest of the applicants (and, indeed, that of the other affected members of the Dole group) in obtaining the interim suspension of the contested regulations and the latter's replacement by a different system of licence allocation could not prevail over the relevant competing interests of the Commission and third parties.
101 First, the Commission has a clear interest in exercising its discretion to adopt what it views as being the most appropriate implementing measures, pending the adoption of the definitive banana-import regime envisaged in Regulation 216/2001, for granting licences to import bananas from third countries (see Cordis v Commission, cited above, paragraph 77). The Commission was, thus, entitled in adopting the contested regulations, inter alia, to take into account the general interest for the Community, and particularly for Community undertakings engaged in export trade with the United States of America, of resolving the trade dispute with the latter which had resulted from the operation of the 1993 and 1999 regimes and which led that country to impose a number of punitive tariffs on various Community exports. Secondly, it is necessary to take into account the interests of the other banana operators who would be directly, and in many cases adversely, affected if the suspension sought by the applicants were granted. This is a fortiori true in the present case, since it would be very difficult, if not impossible, for the Commission to restore to such operators the benefit of the use of licences lost to them under the interim licence-allocation system that the Commission would be obliged to put into place if the interim measure sought by the applicants in these proceedings were granted but their annulment application in the main action were later rejected.
102 The potentially irreparable nature of some of the financial losses that could be incurred by the applicants as a result of the operation of the contested regulations would not suffice to outweigh the abovementioned countervailing interests. The balance of interests would therefore favour the maintenance in force, pending judgment in the main application, of the contested regulations.
103 It follows from all of the above that the present application for interim measures must be dismissed.
Operative partOn those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim relief is dismissed;
2. Costs are reserved.
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