61988O0191(01)

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Action for annulment - Natural and legal persons - Measures of direct and individual concern to them - Commission decision authorizing a Member State to adopt protective measures - Trader' s previous expression of intention to effect imports and objection to the adoption of the decision - Inadmissibility

( EEC Treaty, Art . 115, first paragraph, and Article 173, second paragraph )

A Commission decision adopted pursuant to the first paragraph of Article 115 of the EEC Treaty and addressed to a Member State authorizing it in future not to apply Community treatment, subject to certain conditions and during a given period, to bananas originating in certain non-member countries and put into free circulation in the other Member States constitutes, in relation to banana importers as a whole, a generally applicable measure which applies to objectively determined situations and produces legal effects in relation to categories of persons described in general and abstract terms .

Accordingly, it is not of individual concern, within the meaning of the second paragraph of Article 173 of the Treaty, to an undertaking which imports bananas, even if it had, prior to the adoption of the decision in question, informed the Commission of its opposition to any measure of that type and had from time to time applied for import licences .

Circumstances of that kind are irrelevant since the decision has no retroactive effect and applies only to future applications for import licences .

In Case 191/88

Co-Frutta SARL, whose registered office is in Padua ( Italy ), represented by Wilma Viscardini Donà, of the Padua Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 4 avenue Marie-Thérèse,

applicant,

v

Commission of the European Communities, represented by its Legal Adviser, Marie-José Jonczy and by Pieter Jan Kuyper, a member of its legal Department, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for a declaration that the Commission' s decision of 30 June 1988 authorizing the Italian Republic not to apply Community treatment to fresh bananas originating in certain non-member countries is void,

THE COURT

composed of : O . Due, President, T . Koopmans, R . Joliet, T . F . O' Higgins, and F . Grévisse ( Presidents of Chambers ), Sir Gordon Slynn, G . F . Mancini, C . N . Kakouris, F . A . Schockweiler, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, M . Díez de Velasco and M . Zuleeg, Judges,

Advocate General : C . O . Lenz

Registrar : J.-G . Giraud

after hearing the views of the Advocate General,

makes the following

Order

1 By application lodged at the Court Registry on 14 July 1988, Co-Frutta SARL, whose registered office is in Padua ( Italy ), brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that Commission Decision C(88 ) 1311 of 30 June 1988 addressed to the Italian Republic and authorizing that Member State, pursuant to Article 115 of the EEC Treaty, not to apply Community treatment to fresh bananas falling within CN Code ex 0803 00 10, originating in dollar-zone countries and in free circulation in the other Member States ( Official Journal 1988, C 177, p . 12 ) is void .

2 In accordance with Council Regulation ( EEC ) No 288/82 of 5 February 1982 on common rules for imports ( Official Journal 1982, L 35, p . 1 ), the Italian Republic opens for the direct importation of bananas originating in dollar-zone countries an annual quota divided into monthly quotas each subdivided into two tranches . Circular No 42 issued by the Minister for Foreign Trade on 12 June 1987 opening the annual quota for direct imports for 1987-88 lapsed on 30 June 1988 .

3 The Commission considered that, in the absence of protective measures adopted pursuant to Article 115, unlimited imports of bananas originating in the dollar area and in free circulation in the other Member States might undermine the traditional advantages enjoyed on the Italian market by the ACP States, including Somalia, and thereby call in question the obligation, imposed on the Community by Protocol 4 annexed to the Third ACP-EEC Convention signed at Lomé on 8 December 1984 ( Official Journal 1986, L 86, p . 3 ), to guarantee those States' traditional outlets for bananas on the Community market .

4 Since 1 June 1985, therefore, the Commission has successively adopted with regard to Italy a series of decisions, valid for a limited period of several months to a year, authorizing that Member State to continue not to apply Community treatment to bananas from dollar-zone countries and in free circulation in the other Member States . The last authorization, granted by decision of 28 January 1988, lapsed on 30 June 1988 .

5 Pending the adoption of a new ministerial circular regulating direct imports of bananas from non-member countries for the period from 1 July 1988 to 30 June 1989, the Italian authorities renewed, for July 1988, the direct import quota fixed by Circular No 42 for July 1987, which amounted to 21 600 tonnes .

6 On 24 June 1988 the Italian Government applied to the Commission for authorization not to apply Community treatment to bananas originating in dollar-zone countries and in free circulation in the other Member States .

7 That authorization was granted by the contested decision, adopted on 30 June 1988 and in force as from 1 July 1988, which thus extends until 30 June 1989 the previous system of authorization .

8 However, the Commission reserved an import quota for bananas in free circulation amounting to 10% of the direct import quota opened by the Italian Republic . That quantity is apportioned by the Italian authorities on a monthly basis by allocating at least 50% to importers of bananas in free circulation in proportion to the quantities imported by those importers since January 1984 . The Commission reserves the right to amend that decision, if necessary .

9 Pursuant to the contested decision, the Italian authorities fixed at 2 160 tonnes the quota for imports of bananas in free circulation for July 1988 and set the closing date for the submission of applications for import licences at 12 July 1988 .

10 Owing to cargo deterioration which occurred on board two vessels, the applicant received delivery of bananas purchased in Colombia only after the monthly direct import quotas opened by the Italian authorities for June and July 1988 had been exhausted .

11 In order to be able to obtain bananas in free circulation in the Community, on 2 June 1988 the applicant requested the Commission, without eliciting a reply, to revoke its previous decision adopted pursuant to Article 115 and dated 29 January 1988, which was in force at the time . Furthermore, on 30 June 1988 the applicant submitted a request to the Commission asking it to reject the application for authorization submitted by the Italian Government on 24 June 1988 and to make representations to that government in order to secure the abolition of the direct import quota .

12 On 1 July 1988 the applicant also applied to the Italian authorities for an import licence in respect of 2 000 tonnes of bananas originating in Colombia and put into free circulation in the Benelux countries .

13 Taking the view that the direct import quota and, consequently, the contested decision adopted for its protection were contrary, in particular, to Article XI of the General Agreement on Tariffs and Trade ( GATT ) and Article 113 of the EEC Treaty, the applicant brought this action and submitted to the Court pursuant to Articles 185 and 186 of the EEC Treaty an application for the adoption of interim measures, which was dismissed by order of the President of the Court of 18 August 1988 .

14 The Commission contests the admissibility of the application on the ground, in particular, that the applicant is not individually concerned, within the meaning of Article 173 of the EEC Treaty, notwithstanding the frequent contacts which took place between itself and the Commission' s departments . Nor is the applicant directly concerned since the Italian authorities have never undertaken to adopt the measures authorized in relation to it .

15 The applicant, however, contends in substance that all traders who, prior to the adoption of the contested decision, had regularly submitted each month applications for import licences to the Italian authorities are directly and individually concerned by the contested decision since it was adopted precisely in order to impose certain limits and conditions on the admissibility of their future applications for import licences . Those traders, including the applicant, are all well known and identifiable . Furthermore, the applicant is identified more specifically than other importers inasmuch as it has repeatedly applied for import licences and expressed to the Commission its interest in importing bananas in free circulation .

16 Under Article 92(2 ) of its Rules of Procedure, the Court may at any time consider whether there exists any absolute bar to proceeding with a case and give its decision in accordance with Article 91(3 ) and ( 4 ) without opening the oral procedure .

17 Since the documents contain all the arguments needed in order to give a decision, it would not appear to be necessary to hear the parties' oral explanations .

18 Under the second paragraph of Article 173 of the Treaty, the admissibility of an action for the annulment of a decision brought by an individual who is not the addressee thereof is conditional on that decision being of direct and individual concern to the applicant .

19 Since the applicant is not the addressee of the contested decision, it is necessary to consider whether it is of direct and individual concern to it .

20 It follows from the case-law of the Court ( see the judgment of 15 July 1963 in Case 25/62 Plaumann & Co v Commission (( 1963 )) ECR 95 ) that third parties may claim to be individually concerned by a decision addressed to another person only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed .

21 It would appear that the aim of the contested decision is to authorize the Italian Republic in future not to apply Community treatment to bananas from dollar-zone countries and in free circulation, subject to certain conditions and during a given period . The decision therefore constitutes, in relation to banana importers as a whole, a generally applicable measure which applies to objectively determined situations and produces legal effects in relation to categories of persons described in general and abstract terms .

22 It follows that the contested decision concerns the applicant solely in its objective capacity as a banana importer, as in the case of any other trader at present or potentially in an identical situation .

23 That conclusion is not invalidated by the fact that, prior to the adoption of the contested decision, the applicant sought in vain to secure the revocation and non-renewal of the authorization not to apply Community treatment to bananas from dollar-zone countries and in free circulation and applied from time to time for import licences . Circumstances of that kind are wholly irrelevant to the question of the admissibility of this application, since the contested decision has no retroactive effect and applies only to future applications for import licences, as the applicant itself has stated .

24 In those circumstances the contested decision is manifestly not open to challenge by the applicant pursuant to the second paragraph of Article 173 of the EEC Treaty . The application must therefore be dismissed as inadmissible .

Costs

25 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the applicant has been unsuccessful in its submissions, it must be ordered to pay the costs .

On those grounds,

THE COURT

hereby orders as follows :

( 1)The application is dismissed as inadmissible .

( 2)The applicant is ordered to pay the costs, including those of the application for interim measures .

Luxembourg, 15 March 1989 .