61988O0112

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Application for interim measures - Suspension of the operation of a decision - Conditions for granting - Serious and irreparable damage to the applicant

( EEC Treaty, Art . 185; Rules of Procedure, Art . 83 ( 2 ) ).

In Case 112/88 R

Crete Citron Producers Association, whose registered office is at 17 Odos Gabriel, Heraklion, Crete, represented by G . A . Vachaviolos, of the Athens Bar, with an address for service in Luxembourg at the chambers of Caroline Stratigaki Goldstain, Allée Pierre de Mansfeld,

applicant,

v

Commission of the European Communities, represented by T . Christoforou, a member of its Legal Department, and T . F . Cusack, Legal Adviser, acting as Agents, with an address for service in Luxembourg at the office of G . Kremlis, a member of the Commission' s Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for the suspension of the operation of Commission Decision E/88/200 of 4 February 1988 ( 1 )which amends Commission Decision 86/614/EEC of 16 December 1986 amending Commission Decision 85/594/EEC authorizing Greece to take certain safeguard measures under Article 108 ( 3 ) of the EEC Treaty ( Official Journal 1986, L 357, p . 28 ).

The President of the Court of Justice

of the European Communities

makes the following

Order

1 By an application lodged at the Court Registry on 7 April 1988, the Crete Citron Producers Association brought an action under the second paragraph of Article 173 of the EEC Treeaty for a declaration that Commission Decision E/88/200 of 4 February 1988 which amends Commission Decision 86/614/EEC of 16 December 1986 amending Commission Decision 85/594/EEC authorizing Greece to take certain safeguard measures under Article 108 ( 3 ) of the EEC Treaty ( Official Journal 1986, L 357, p . 28 ) was void .

2 By an application for interim relief lodged at the Court Registry on the same day, the applicants sought, pursuant to Articles 185 and 186 of the EEC Treaty and Article 83 of the Rules of Procedure, the suspension of the operation of the abovementioned Commission decision of 4 February 1988 until the 30th day following the date of notification of the judgment delivered by the Court in the main proceedings .

3 The defendant submitted its written observations on 29 April 1988 . The parties presented oral argument on 2 May 1988 .

4 Before examining the merits of this interlocutory application, it would be helpful to describe briefly the factual and legal background to this case .

5 A variety of tree known as the Citrus medica grows in Crete . The fruit of this tree are citrons, whose peel is used in the production of preserves . Since 1983 the Cretan growers of this fruit represented by the Crete Association of Citron Producers have exported these products, in particular to the German market .

6 In March 1983 a Netherlands producer of the same product complained to the Commission that he was exposed to unfair competition on the part of Greek undertakings as a result of the export aid, equivalent to 32% of the fob price, which was granted to them .

7 On 29 April 1987 that producer and the Dutch Fruit and Vegetable Processing Industry Association submitted to the Commission a request for the application of Article 3 of Commission Decision 86/614/EEC of 16 December with a view to excluding all export aid granted by Greece in the sector in question .

8 By Decision 86/614/EEC, the Commission amended its Decision 85/594/EEC of 22 November 1985 authorizing Greece to take certain safeguard measures under Article 108 ( 3 ) of the EEC Treaty ( Official Journal 1986, L 373, p . 9 ). As one of these measures Greece was authorized to grant, until 31 December 1986, export aid of up to 26.4% of the fob price .

9 Decision 86/614/EEC provides that, in principle, export aid is to be phased out by Greece in accordance with the rules laid down in Article 1 thereof in four equal steps to take effect on 1 January 1987, 1 January 1988, 1 January 1989 and 1 January 1990 . Article 3 however contains the following proviso :

"Should evidence be presented to the Commission which, upon examination and after consultation with the interested parties, shows that the grant of the export aid to any particular sector is causing, or threatens to cause, major changes in traditional trade flows and that these changes are causing or threaten to cause serious material injury to an established industry in other Member States to a degree contrary to the common interest, the Commission shall amend this decision so as to reduce or exclude all aid to the sector in question ."

10 The Commission took the view that the conditions laid down in Article 3 of Decision 86/614/EEC were satisfied and accordingly decided to adopt its decision of 4 February 1988, the suspension of the operation of which is sought in these proceedings . The purpose of that decision is to prohibit the Greek Government from granting any export aid for citrons ( Nimexe 20.04-30 ) with effect from 4 February 1988 .

11 According to Article 185 of the EEC Treaty, actions brought before the Court of Justice are not to have suspensory effect . The Court may, however, if it considers that circumstances so require, order that application of the contested act be suspended .

12 In order for an interim measure such as that requested to be granted, Article 83 ( 2 ) of the Rules of Procedure requires that applications for such measures should state the factual and legal grounds establishing a prima facie case for the interim measure requested and the circumstances giving rise to urgency .

13 The Court has consistently held that the urgency of an application for interim measures, as referred to in Article 83 ( 2 ) of the Rules of Procedure, must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim measure .

14 In this respect, the applicant' s only argument is that the Cretan citron producers, grouped together in the Crete Citron Producers Association, would suffer serious and irreparable damage as a result of the application of the contested decision of 4 February 1988, which would make it impossible for them to plan their production and the marketing of their products . They state that the contracts for the sale of these products are concluded annually, in the course of the first quarter, so that the amount of aid abolished would have to be borne by the association if it wished to honour the contracts concluded with its customers . Since its membership comprises 1 800 family agricultural businesses, it considers that the number of persons who would suffer damage resulting from the abolition of the aid is 7 000 .

15 It stresses that, in order to assess the precise extent of the damage sustained by the Cretan producers, it is further necessary to bear in mind that Crete is regarded under various Community regulations as a region with economic problems and that the abolition of the aid in question would impede the completion and the bringing into operation in 1988 of a modern factory for the production of citrons in particular, which would undoubtedly have important repercussions on the income of the citron producers in question .

16 For its part, the Commission states that it fails to understand why the abolition of the aid, a possibility of which the Greek undertakings were aware since they knew that Article 3 of Decision 86/614/EEC might be applied, would make the planning of their production impossible, in particular because those undertakings are at the same time producers, processers and exporters . It points out, moreover, that the applicant has not argued that the Cretan undertakings concerned face serious financial problems or that the product which they manufacture runs the risk of deterioration or destruction if it is not marketed within a given time .

17 The Commission takes the view that the only damage which the Crete undertakings would suffer, namely an increase in their production costs of a percentage equal to that of the amount of the export aid abolished, is merely the necessary and natural consequence of the abolition of aid incompatible with the common market, which can in no circumstances be regarded as serious and irreparable damage suffered by them . Moreover, that damage must be weighed against the interest which the undertakings of other Member States have in not being exposed to unfair competition, on the part of the Greek undertakings, arising from the aforementioned State aid . Referring to the order of the President of the Court of 9 April 1987 in Case 77/87 R Technointorg v Council (( 1987 )) ECR 1793, the Commission maintains that in addition to the damage which is the normal result of the abolition of aid, the applicant should have adduced evidence that its members will suffer special further damage .

18 In this respect it should be noted that Commission Decision E/88/200 of 4 February 1988 was adopted on the basis of Article 108 ( 3 ) of Chapter 3 on the balance of payments, in Title II, "Economic Policy", of the Third Part of the EEC Treaty relating to the Policy of the Community and that the Hellenic Republic is the sole addressee of the decision by virtue of Article 4 thereof .

19 It is apparent from the foregoing that the export aid, whose abolition is provided for by that decision, is therefore essentially intended to facilitate the restoration of the Hellenic Republic' s balance of payments and not to support the incomes of a category of traders by granting them aid with a view to helping their exports .

20 It follows that the only direct damage which could possibly result from the application of Commission Decision E/88/200 of 4 February 1988 and be regarded as serious and irreparable damage justifying the suspension of the operation of that decision would be damage to the equilibrium of the balance of payments, on which, as the addressee of the decision, only the Hellenic Republic is entitled to rely .

On those grounds,

The President,

by way of an interim decision,

hereby orders as follows :

( 1 ) The application for interim measures is dismissed .

( 2 ) The costs are reserved .

Luxembourg, 6 May 1988 .