Orders nº T-43/98 of Court of First Instance of the European Communities, August 14, 1998

• Resolution Date: August 14, 1998
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-43/98

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

14 August 1998 (1) (Association regime for overseas countries and territories - Decisions 91/482/EEC and 97/803/EC - Proceedings for interim measures - Intervention - Urgency - None)

In Case T-43/98 R,

Emesa Sugar (Free Zone) NV, a company incorporated under the law of Aruba, established at Oranjestad, Aruba, represented by Gerard van der Wal, Advocate with a right of audience before the Hoge Raad der Nederlanden, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

applicant,

v

Council of the European Union, represented by Jürgen Huber and Guus Houttouin, Legal Advisers, acting as Agents, with an address for service in Luxembourg at the office of Alessandro Morbilli, Manager of the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

supported by

Commission of the European Communities, represented by Thomas van Rijn, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

Kingdom of Spain, represented by Rosario Silva de Lapuerta and Mónica López-Monis Gallego, Abogados del Estado, of the Community Proceedings Service, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard E. Servais,

and

French Republic, represented by Claude Chavance, Secretary for Foreign Affairs, with an address for service in Luxembourg at the French Embassy, 8 B Boulevard Joseph II,

APPLICATION for partial suspension of the operation of Council Decision 97/803/EC of 24 November 1997 amending at mid-term Decision 91/482/EEC on the association of the overseas countries and territories with the European Economic Community (OJ 1997 L 329, p. 50).

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Legal context

1.

The island of Aruba is one of the overseas countries and territories ('OCTs‘) associated with the Community. The association of the OCTs with the Communityis regulated by Part Four of the EC Treaty and by Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community (OJ 1991 L 263, p. 1, 'the OCT decision‘), adopted pursuant to the second paragraph of Article 136 of the Treaty.

2.

Article 133(1) of the Treaty provides that customs duties on imports into the Member States of goods originating in the OCTs are to be completely abolished in accordance with the provisions of the Treaty.

3.

The original version of Article 101(1) of the OCT decision read as follows:

'Products originating in the OCTs shall be imported into the Community free of customs duties and charges having equivalent effect.‘

4.

Article 102 of the same decision provided as follows:

'The Community shall not apply to imports of products originating in the OCTs any quantitative restriction or measure having equivalent effect.‘

5.

Article 108(1), first indent, of the OCT decision refers to Annex II thereof ('Annex II‘) for the definition of the concept of originating products and the methods of administrative cooperation relating thereto.

6.

Under Article 1 of Annex II, a product is considered to originate in the OCTs, the Community or the African, Caribbean and Pacific States ('the ACP States‘) if it has been either wholly obtained or sufficiently worked or processed there.

7.

Article 6(2) of the same annex provides that, when products wholly obtained in the Community or in the ACP States undergo working or processing in the OCTs, they are to be considered as having been wholly obtained in the OCTs. Under this rule, known as 'ACP/OCT cumulation of origin‘, sugar originating in the ACP States which had undergone some degree of working or processing in the OCTs could be imported into the Community free of customs duties.

8.

Article 240(1) of the OCT decision states that the decision is to apply for a period of 10 years from 1 March 1990. However, Article 240(3)(a) and (b) provides that before the end of the first five years the Council, acting unanimously on a proposal from the Commission, is, in addition to the financial assistance from the Community for the second five-year period, to establish, where necessary, any amendments to the OCT decision following notification to the Commission by the relevant authorities of the OCTs or proposed by the Commission in the light of its own experience or as a result of amendments under negotiation between the Community and the ACP States.

9.

In a communication to the Council on the amendment at mid-term of the association of the OCTs with the European Community [document COM(94) 538 final, of 21 December 1994], the Commission recommended various adjustments to the association.

10.

On 16 February 1996 it presented to the Council a proposal for a Council decision amending at mid-term the OCT decision (OJ 1996 C 139, p. 1). In the sixth and seventh recitals of the proposal the Council stated that free access for all products originating in the OCTs and the maintenance of ACP/OCT cumulation of origin had given rise to the risk of conflict between two Community policy objectives, namely the development of the OCTs and the common agricultural policy.

11.

Concerned to resolve this risk of conflict, the Council adopted decision 97/803/EC of 24 November 1997 amending at mid-term Decision 91/482/EEC on the association of the overseas countries and territories with the European Economic Community (OJ 1997 L 329, p. 50, 'the contested decision‘).

12.

In the seventh recital of that decision the Council observed as follows:

'... fresh disruption should be avoided by taking measures to create a framework conducive to regular trade flows and at the same time compatible with the common agricultural policy‘.

13.

For that purpose, the contested decision added Articles 108a and 108b to the OCT decision, allowing the ACP/OCT cumulation of origin for rice and sugar respectively, for a specified annual quantity.

14.

Accordingly, Article 108b(1) and (2) of the OCT decision reads as follows:

'1. The ACP/OCT cumulation of origin referred to in Article 6 of Annex II shall be allowed for an annual quantity of 3 000 tonnes of sugar ...

2. For the purposes of implementing the ACP/OCT cumulation rules referred to in paragraph 1, forming sugar lumps or colouring shall be considered as sufficient to confer the status of OCT-originating products.‘

   15.
   The contested decision also amended Articles 101(1) and 102 of the OCT decision, which now reads as follows::

   'Article 101

1. Products originating in the OCTs shall be imported into the Community free of import duty.

   ...

   Article 102

   Without prejudice to Articles 108a and 108b, the Community shall not apply to imports of products originating in the OCTs any quantitative restriction or measure having equivalent effect.‘

   Facts and procedure

   16.
   Since April 1997 the applicant has operated a sugar factory on the island of Aruba and has exported sugar to the Community.
   17.
   As sugar is not produced in Aruba, the applicant purchases white sugar from cane sugar refineries in ACP States. The purchased sugar is transported to Aruba, where it undergoes working and processing operations, after which the product is considered finished. These operations consist in purifying the sugar, milling it (which means bringing it to the grade required by the customer's specifications) and packaging it. The applicant states that its factory has a minimum processing capacity of 34 000 tonnes of sugar per year.
   18.
   By application lodged at the Court Registry on 10 March 1998, the applicant brought an action under the fourth paragraph of Article 173 of the Treaty for the partial annulment of the contested decision.
   19.
   By separate document registered at the Court Registry on 10 April 1998, the applicant also initiated proceedings under Article 185 of the Treaty for suspension of the operation of Article 1, points 28, 30, 32 and 60, of the contested decision until the Court gives judgment on the substance of the case and, in the alternative, proceedings under Article 186 of the Treaty for appropriate interim measures.
   20.
   The...