61983O0114

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - CONDITIONS FOR GRANTING

( EEC TREATY , ART . 186 ; RULES OF PROCEDURE , ART . 83 ( 2 ))

THE INTERIM MEASURES WHICH THE COURT MAY ORDER IN PURSUANCE OF ARTICLE 186 OF THE TREATY CANNOT BE CONSIDERED UNLESS THE FACTUAL AND LEGAL CIRCUMSTANCES RELIED UPON TO OBTAIN THEM ESTABLISH A PRIMA FACIE CASE FOR GRANTING THEM . IN ADDITION THEY MUST BE URGENT IN THE SENSE THAT IT IS NECESSARY FOR THE MEASURES TO BE ADOPTED AND TO TAKE EFFECT BEFORE THE DECISION OF THE COURT ON THE SUBSTANCE OF THE CASE IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY SEEKING THEM . FINALLY , THEY MUST BE PROVISIONAL IN THE SENSE THAT THEY DO NOT PREJUDGE THE DECISION ON THE SUBSTANCE OF THE CASE .

IN CASE 114/83 R

SOCIETE D ' INITIATIVES ET DE COOPERATION AGRICOLE , KERISNEL , WHOSE REGISTERED OFFICE IS AT 29250 SAINT-POL-DE-LEON ,

AND

SOCIETE INTERPROFESSIONNELLE DES PRODUCTEURS ET EXPEDITEURS EN FRUITS ET LEGUMES , WHOSE REGISTERED OFFICE IS AT PLACE DU MARCHE , 35350 SAINT-MELOIR-DES-ONDES ,

REPRESENTED BY DOMINIQUE SCHMIDT , OF THE STRASBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF G . HARLES , 34B 4 , RUE PHILIPPE-II ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , 200 RUE DE LA LOI , B-1049 BRUSSELS , REPRESENTED BY F . LAMOUREUX , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR AN ORDER CALLING UPON THE COMMISSION TO ADOPT MEASURES TO PUT AN END TO CERTAIN PRACTICES OF THE GREEK GOVERNMENT AND TO CONDUCT AN INQUIRY INTO CERTAIN ASPECTS OF THE FUNCTIONING OF THE NEW-POTATO MARKET DURING THE 1983 MARKETING YEAR , PURSUANT TO ARTICLE 155 OF THE EEC TREATY AND ARTICLE 2 ( 3 ) OF REGULATION ( EEC ) NO 26 OF 4 APRIL 1962 .

' 1 ACCORDING TO ARTICLE 186 OF THE EEC TREATY , THE COURT MAY IN CASES BEFORE IT PRESCRIBE ANY NECESSARY INTERIM MEASURES .

2 ACCORDING TO THE ESTABLISHED CASE-LAW , THE ADOPTION OF SUCH MEASURES CANNOT BE CONSIDERED UNLESS THE FACTUAL AND LEGAL CIRCUMSTANCES RELIED UPON TO OBTAIN THEM ESTABLISH A PRIMA FACIE CASE FOR GRANTING THEM . IN ADDITION THEY MUST BE URGENT IN THE SENSE THAT IT IS NECESSARY FOR THE MEASURES TO BE ADOPTED AND TO TAKE EFFECT BEFORE THE DECISION OF THE COURT ON THE SUBSTANCE OF THE CASE IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY SEEKING THEM . FINALLY , THEY MUST BE PROVISIONAL IN THE SENSE THAT THEY DO NOT PREJUDGE THE DECISION ON THE SUBSTANCE OF THE CASE .

3 IT APPEARS FROM THE ORAL PROCEDURE IN THE INTERIM PROCEEDINGS THAT THE APPLICATION FOR INTERIM MEASURES IS A STEP IN THE MAIN ACTION IN SO FAR AS THAT ACTION IS FOUNDED ON THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY AND SEEKS TO OBTAIN COMPENSATION FOR THE DAMAGE WHICH THE APPLICANTS CLAIM TO HAVE SUFFERED . THEY ATTRIBUTE THAT DAMAGE TO THE FACT THAT THE COMMISSION , IN THEIR OPINION IN BREACH OF THE TREATY , FAILED TO ADOPT THE PROTECTIVE MEASURES PROVIDED FOR IN ARTICLE 130 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE HELLENIC REPUBLIC .

4 IN SUPPORT OF THAT APPLICATION , THE APPLICANTS CLAIM THAT THE MEASURES SOUGHT ARE URGENT AND NECESSARY IN ORDER TO PREVENT THE DAMAGE ' ' ALREADY ' ' SUSTAINED BY THEM FROM BEING SERIOUSLY AGGRAVATED BY THE COMMISSION ' S ' ' FAILURE TO TAKE ACTION ' ' .

THE FIRST LIMB OF THE APPLICATION

5 THE FIRST PART OF THE APPLICATION CANNOT BE ACCEPTED . CONSIDERATION OF BOTH THAT LIMB OF THE APPLICATION AND THE MAIN ACTION REVEALS THAT THE APPLICATION RAISES PRIMA FACIE SERIOUS PROBLEMS BOTH AS REGARDS THE ADMISSIBILITY AND THE MERITS OF THE ACTION FOR LIABILITY RELATING TO MATTERS GOVERNED BY ARTICLE 130 OF THE ACT OF ACCESSION OF THE HELLENIC REPUBLIC . IN ADDITION IT APPEARS THAT FOR THE MAJOR PART OF THE PRODUCTION IN QUESTION , THE MARKET SEASON IS FINISHING . IN THE LIGHT OF THOSE TWO FACTS IN PARTICULAR , IT WOULD BE DISPROPORTIONATE IN RELATION TO THE REQUIREMENTS OF THE PROTECTION OF ANY RIGHT TO COMPENSATION WHICH THE APPLICANTS MAY CLAIM IN THE MAIN ACTION TO ADOPT PROVISIONALLY MEASURES SUPPOSEDLY INTENDED TO LIMIT THE DAMAGE IN RESPECT OF WHICH COMPENSATION WILL BE REQUESTED ON THE BASIS OF ARTICLE 215 OF THE TREATY , BUT WHICH ESSENTIALLY CORRESPOND TO THE MEASURES PROVIDED FOR IN ARTICLE 130 OF THE ACT OF ACCESSION .

THE SECOND LIMB OF THE APPLICATION

6 THE SECOND PART OF THE APPLICATION , WHICH IS BASED ON ARTICLE 2 ( 3 ) OF REGULATION ( EEC ) NO 26 OF THE COUNCIL OF 4 APRIL 1962 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1959-62 , P . 129 ) APPLYING CERTAIN RULES OF COMPETITION TO PRODUCTION OF AND TRADE IN AGRICULTURAL PRODUCTS , ASKS THE COURT TO ORDER THE COMMISSION TO CONDUCT AN INQUIRY INTO THE FUNCTIONING OF THE NEW-POTATO MARKET DURING THE MARKETING YEAR 1983 , IN PARTICULAR AS REGARDS THE COMPARISON OF THE PRICES OF GREEK NEW POTATOES ON THE MARKET OF THAT MEMBER STATE AND THE PRICES OF THE SAME POTATOES WHEN EXPORTED TO OTHER MEMBER STATES .

7 IT SHOULD BE NOTED IN THE FIRST PLACE THAT ARTICLE 2 ( 3 ) OF REGULATION ( EEC ) NO 26 , ON WHICH THE APPLICANTS BASE THE SECOND LIMB OF THEIR APPLICATION , ONLY CONCERNS THE APPLICATION OF ARTICLE 85 OF THE TREATY TO CERTAIN AGRICULTURAL PRODUCTS . THE APPLICANTS HAVE FAILED TO PRODUCE ANY EVIDENCE OF THE EXISTENCE OF A LINK BETWEEN THE APPLICATION OF ARTICLE 85 AND THE SUBJECT OF THAT PART OF THE APPLICATION .

8 IN ADDITION , THE APPLICANTS HAVE NOT ADDUCED ANY EVIDENCE ESTABLISHING THAT IT IS URGENT AND NECESSARY TO MAKE AN ORDER IN THE INTERIM PROCEEDINGS FOR THE INVESTIGATION THEY SEEK IN ORDER TO ENSURE AN APPROPRIATE PRELIMINARY INQUIRY IN THE MAIN ACTION .

9 THE REJECTION OF THAT LIMB OF THE APPLICATION DOES NOT , HOWEVER , PREJUDICE IN ANY WAY WHATSOEVER THE MEASURES OF INQUIRY WHICH THE APPLICANTS MAY REQUEST OR WHICH THE COURT MIGHT ORDER IN THE COURSE OF THE MAIN ACTION .

10 IN THOSE CIRCUMSTANCES IT IS APPROPRIATE TO RESERVE THE COSTS .

ON THOSE GROUNDS ,

THE PRESIDENT ,

BY WAY OF INTERIM DECISION ,

HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATION IS DISMISSED .

2 . THE COSTS ARE RESERVED .