Atlanta Fruchthandelsgesellschaft mbH and others v Bundesamt für Ernährung und Forstwirtschaft.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 09 November 1995

Judgment of the Court of 9 November 1995. - Atlanta Fruchthandelsgesellschaft mbH and others v Bundesamt für Ernährung und Forstwirtschaft. - Reference for a preliminary ruling: Verwaltungsgericht Frankfurt am Main - Germany. - Regulation - Reference for a preliminary ruling - Assessment of validity - National court - Interim relief. - Case C-465/93.

European Court reports 1995 Page I-03761

Summary Parties Grounds Decision on costs Operative part

Keywords

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Acts of the institutions ° Regulations ° Dispute before a national court as to the legality of a regulation during an action brought against a national implementing measure ° Ordering of interim measure provisionally disapplying the regulation ° Whether permissible ° Conditions ° Prima facie case ° Question of validity submitted to the Court by way of a reference for a preliminary ruling on validity ° Serious and irreparable damage ° Account to be taken of the Community interest ° Respect for the relevant decisions of the Community judicature

(EC Treaty, Arts 177, 185 , 186 and 189, second para.)

Summary

Article 189 of the Treaty does not preclude national courts from granting interim relief to settle or regulate the disputed legal positions or relationships with reference to a national administrative measure based on a Community regulation which is the subject of a reference for a preliminary ruling on its validity.

The Court has already held, having regard to the requirement of the coherence of the system of interim legal protection, that national courts which have referred such questions for a preliminary ruling are able to order suspension of enforcement of a national administrative measure based on the contested regulation, considering that in the context of actions for annulment, Article 185 of the Treaty enables applicants to request enforcement of the contested act to be suspended and empowers the Court to order such suspension: firstly, the Treaty not only, in Article 185, authorizes the Court to order such suspension but also, in Article 186, confers on it the power to prescribe any necessary interim measure, and secondly, the interim legal protection which the national courts must afford to individuals under Community law must be the same, whether they seek suspension of enforcement of a national administrative measure or the grant of the interim measures in question, since that grant does not as such have more radical consequences for the Community legal order than the mere suspension of enforcement of a national measure adopted on the basis of a regulation.

For the national court to be able to order such interim relief, it must entertain serious doubts as to the validity of the Community act and state them in its decision; if the validity of the contested act is not already before the Court of Justice, it must itself refer the question to the Court of Justice; there must be urgency, in that the interim relief is necessary in order to avoid serious and irreparable damage being caused to the party seeking the relief; and due account must be taken of the Community interest. Taking such account means that the national court must examine whether the Community act in question would be deprived of all effectiveness if not immediately implemented, and must take account in that respect of the damage which may be caused to the legal regime established by the regulation for the Community as a whole. It also means that if the grant of interim relief represents a financial risk for the Community, the national court must be able to require the applicant to provide adequate guarantees. Finally, in its assessment of all those conditions, the national court must respect any decisions of the Court of Justice or the Court of First Instance ruling on the lawfulness of the regulation or on an application for interim measures seeking similar interim relief at Community level.

Parties

In Case C-465/93,

REFERENCE to the Court under Article 177 of the EC Treaty by the Verwaltungsgericht Frankfurt am Main, Germany, for a preliminary ruling in the proceedings pending before that court between

Atlanta Fruchthandelsgesellschaft mbH and Others

and

Bundesamt fuer Ernaehrung und Forstwirtschaft,

on the interpretation of Article 189 of the EC Treaty, and more particularly on the national court' s power to order interim measures disapplying a regulation pending a preliminary ruling by the Court on its validity,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C.N. Kakouris, D.A.O. Edward, J.-P. Puissochet and G. Hirsch (Presidents of Chambers), G.F. Mancini, F.A. Schockweiler (Rapporteur), J.C. Moitinho de Almeida, P.J.G. Kapteyn, C. Gulmann, J.L. Murray, P. Jann and H. Ragnemalm, Judges,

Advocate General: M.B. Elmer,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Atlanta Fruchthandelsgesellschaft mbH and Others, by E.A. Undritz and G. Schohe, Rechtsanwaelte, Hamburg,

° the German Government, by E. Roeder, Ministerialrat in the Federal Ministry of Economic Affairs, and B. Kloke, Regierungsrat in that Ministry, acting as Agents,

° the Spanish Government, by A. Navarro González, Director-General of Community Legal and Institutional Coordination, and Rosario Silva de Lapuerta, Abogado del Estado, of the State Legal Service, acting as Agents,

° the French Government, by C. de Salins, Deputy Director in the Legal Affairs Department of the Ministry of Foreign Affairs, and N. Eybalin, Secretary for Foreign Affairs in that Department, acting as Agents,

° the Italian Government, by U. Leanza, Head of the Legal Department of the Ministry of Foreign Affairs, and P.G. Ferri, Avvocato dello Stato, acting as Agents,

° the United Kingdom, by S.L. Hudson, Assistant Treasury Solicitor, acting as Agent, and E. Sharpston, Barrister,

° the Commission of the European Communities, by U. Woelker, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Atlanta Fruchthandelsgesellschaft mbH and Others, the German Government, the Spanish Government, the United Kingdom and the Commission at the hearing on 28 March 1995,

after hearing the Opinion of the Advocate General at the sitting on 5 July 1995,

gives the following

Judgment

Grounds

1 By order of 1 December 1993 received at the Court Registry on 14 December 1993, the Verwaltungsgericht (Administrative Court) Frankfurt am Main referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Article 189 of the EC Treaty, and more particularly on the national court' s power to order interim measures disapplying a regulation pending a preliminary ruling by the Court on its validity.

2 Those questions arose in proceedings between Atlanta Fruchthandelsgesellschaft mbH and 17 other companies in the Atlanta group (hereinafter "the Atlanta companies") and the Bundesamt fuer Ernaehrung und Forstwirtschaft (Federal Office of Food and Forestry, hereinafter "the Bundesamt") on the allocation of import quotas for third-country bananas.

3 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, hereinafter "the Regulation") established from 1 July 1993 a common import regime replacing the various national arrangements.

4 Title IV of the Regulation, on trade with third countries, provides in Article 18 that a tariff quota of two million tonnes (net weight) is to be opened each year for imports of third-country bananas and non-traditional ACP bananas. Within the framework of that quota, imports of non-traditional ACP bananas are to be subject to a zero duty and imports of third-country bananas to a levy of ECU 100 per tonne. Outside that quota, imports of non-traditional ACP bananas are to be subject to a levy of ECU 750 per tonne and imports of third-country bananas to a levy of ECU 850 per tonne.

5 Article 19(1) subdivides the tariff quota: 66.5% is to be opened to the category of operators who have marketed third-country and/or non-traditional ACP bananas, 30% to the category of operators who have marketed Community and/or traditional ACP bananas, and 3.5% to the category of operators established in the Community who have started marketing bananas other than Community and/or traditional ACP bananas from 1992.

6 Article 21(2) of the Regulation discontinues the annual duty-free import quota for bananas enjoyed by the Federal Republic of Germany under the Protocol annexed to the Implementing Convention on the Association of the Overseas Countries and Territories with the Community provided for in Article 136 of the Treaty.

7 In accordance with the Community legislation, the Atlanta companies, which were traditional importers of third-country bananas, received from the Bundesamt provisional import quotas for third-country bananas for the period from 1 July to 30 September 1993.

8 Since they considered that the Regulation had limited their import possibilities, the Atlanta companies lodged complaints with the Bundesamt.

9 The Atlanta companies brought an action against the decisions rejecting those complaints before the Verwaltungsgericht Frankfurt am Main.

10 Since the Verwaltungsgericht shared the Atlanta companies' doubts as to the validity of the Regulation, by a first order, made on 1 December 1993, it stayed the proceedings pending a preliminary ruling by the Court of Justice on its...