Orders nº T-139/01 of Court of First Instance of the European Communities, September 12, 2001

• Resolution Date: September 12, 2001
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-139/01

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

12 September 2001 (1) (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)

In Case T-139/01 R,

Comafrica SpA, established in Genoa (Italy),

and

Dole Fresh Fruit Europe Ltd & Co., established in Hamburg (Germany),

represented by B. O'Connor, Solicitor, and P.B.G. Martin, Barrister,

applicants,

v

Commission of the European Communities, represented by X. Lewis and C. Van der Hauwaert, 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 (OJ 2001 L 126, p. 6) 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 (OJ 2001 L 153, p. 12),

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Legal 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. 105). 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 duty 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 (EEC) 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 (EEC) 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 of 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...