ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
10 December 1997 (1) (Common organization of the markets - Bananas - Application for interim measures - Request for the issue of import licences)
In Case T-260/97 R,
Camar Srl, a company incorporated under Italian law, having its registered office in Florence (Italy), represented by Wilma Viscardini Donà, assisted by Mariano Paolin and Simonetta Donà, of the Padua Bar, with an address for service in Luxembourg at the Chambers of Ernst Arendt, 8-10 Rue Mathias Hardt,
applicant,
v
Commission of the European Communities, represented by Hubertus Van Vliet, of its Legal Service, acting as Agent, assisted by Alberto Dal Ferro, of the Vicenza Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
and
Council of the European Union, represented by Jan-Peter Hix and Antonio Tanca, Legal Advisers, with an address for service in Luxembourg at the office of Alessandro Morbilli, Manager of the Legal Affairs Directorate of the European Investment Bank, Boulevard Konrad Adenauer,
defendants,
supported by
French Republic, represented by Frédéric Pascal, acting as Agent, with an address for service in Luxembourg at the French Embassy, 8 Boulevard Joseph II,
intervener,
APPLICATION to the President of the Court of First Instance pursuant to Articles 185 and 186 of the EC Treaty for (a) an order suspending the Commission's decision of 17 July 1997 rejecting the application submitted by Camar seeking the adoption of specific measures within the meaning of Article 30 of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas and, furthermore, (b) an order requiring the Commission to calculate the number of Category B licences to which Camar is entitled in respect of 1998, by reference to the quantities of bananas imported in the three-year period from 1988 to 1991, and, in the alternative, to calculate the said licences by reference to the quantities of bananas imported in the three-year period from 1989 to 1991, or by applying the criteria set out by the European Parliament in its Amendment No 8 to the proposal of the Commission, submitted on 8 March 1996, to amend the abovementioned Regulation No 404/93 and, in the further alternative, to grant to Camar financial aid equal to the market value of the Category B licences to be calculated according to one of the criteria set out above.
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Legal framework
1.
Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas (OJ 1993 L 47, p. 1, 'Regulation No 404/93) established, with effect from July 1993, a common system for imports which replaced the various national systems previously prevailing. Regulation No 404/93 was most recently amended by Council Regulation (EC) No 3290/94 of 22 December 1994 on the adjustments and transitional arrangements required in the agricultural sector in order to implement the agreements concluded during the Uruguay Round of multilateral trade negotiations (OJ 1994 L 349, p. 105). The main provisions of Regulation No 404/93 which fall to be considered in the present dispute are Article 15a, Article 18(1) and (2), Article 19(1) and (2), Article 16(1) and (3) and Article 30.
2.
Under the arrangements on trade with third countries, which are the subject of Title IV of Regulation No 404/93, a tariff quota is to be opened each year for imports of third-country bananas (from non-ACP third countries) and non-traditional ACP bananas. The terms 'traditional imports and 'non-traditional imports from ACP States are defined in Article 15a. 'Traditional imports from ACP States means the quantities of bananas, specified in the annex to Regulation No 404/93, exported by those ACP States which have traditionally exported bananas to the Community. For Somalia, the quantity of 'traditional imports was fixed at 60 000 tonnes. The quantities of bananas exported by the ACP States which exceed the quantity defined above are 'non-traditional imports from ACP States.
3.
As regards imports of third-country bananas and non-traditional ACP bananas, the first subparagraph of Article 18(1) provides for the opening each year of a tariff quota of 2.2 million tonnes/net weight and the second subparagraph thereof provides that, within the framework of that quota, third-country imports are to be subject to a levy of ECU 75 per tonne and those of non-traditional ACP bananas are subject to a zero duty. The second subparagraph of Article 18(2) further provides that bananas, whether they come from non-traditional ACP countries or from third countries, imported outside the tariff quota are subject to a customs duty calculated on the basis of the Common Customs Tariff.
4.
Article 19(1) divides the tariff quota thus opened, allocating 66.5% to the category of operators who marketed third-country or non-traditional ACP bananas (subparagraph (a)), 30% to the category of operators who marketed Community or traditional ACP bananas (subparagraph (b)) and 3.5% to the category of operators who started marketing bananas other than Community or traditional ACP bananas from 1992 (subparagraph (c)). In common parlance those various tariff quotas are usually referred to as Category A, B and C licences. Article 19(2) further provides that, on the basis of separate calculations for each of the categories of operators referred to in Article 19(1), 'each operator shall obtain import licences on the basis of the average quantities of bananas that he has sold in the three most recent years for which figures are available and that, inparticular in the case of operators referred to in paragraph 1(b), sales of traditional ACP and/or Community bananas are to be taken into consideration.
5.
Article 16(1) requires a forecast supply balance to be prepared each year on production and consumption in the Community and of imports and exports.
6.
Article 16(3) then provides: 'Where necessary, in particular to take account of the effects of exceptional circumstances affecting production or import conditions, the balance may be adjusted during the marketing year. In such a case, the tariff quota provided for in Article 18 shall be adapted in accordance with the procedure laid down in Article 27.
7.
Finally, Article 30 provides: 'If specific measures are required after July 1993 to assist the transition from arrangements existing before the entry into force of this regulation to those laid down by this regulation, and in particular to overcome difficulties of a sensitive nature, the Commission, acting in accordance with the procedure laid down in Article 27, shall take any transitional measures it judges necessary.
Facts and procedure
8.
The applicant, Camar, a limited liability company incorporated under Italian law, is, in the context of the common organization of the market described above, the only 'traditional importer of bananas from Somalia.
9.
It was acquired in 1983 by the De Nadai group which at present holds 50% of its capital. The De Nadai group owns, among others, the Tico company, which also imports bananas into Italy, and has moreover a majority holding in Somalfruit, an undertaking which is concerned with banana production in Somalia.
10.
Between 1984 and 1990, Somalian banana cultivation reached its zenith, attaining an annual production of 90 000 to 100 000 tonnes. At the time, Camar imported into Europe, and above all into Italy, a considerable part of that production (specifically, 47 491 tonnes in 1988, 37 086 tonnes in 1989 and 45 130 tonnes in 1990).
11.
On 31 December 1990 civil war broke out in Somalia and the normal flow of Camar's imports was interrupted, but was subsequently partially restored in 1994.
12.
Camar none the less continued supplying the Italian market with a quantity of bananas which was not noticeably lower than that imported from Somalia before the outbreak of the civil war, by buying bananas from two ACP countries, Cameroon and the Windward Islands, and from certain third countries, from which it had already begun to import in 1988.
13.
From July 1993, when the common organization of the markets was established, and up to and including 1997, Camar was issued with Category A import licences (for 4 008.521 tonnes in 1993, 8 048.691 tonnes in 1994, 3 423.761 tonnes in 1995, 5 312.671 tonnes in 1996 and 7 545.823 tonnes in 1997) and also with Category B licences (for quantities of 5 622.938 tonnes in 1993, 10 739.088 in 1994, 6 075.934 tonnes in 1995, 2 948.596 tonnes in 1996 and 2 140.718 tonnes in 1997). The...
