Keywords
Summary

Keywords

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1. Actions for annulment of measures ° Interest in bringing proceedings ° Action brought against a measure which has been implemented or repealed

(EEC Treaty, Art. 176)

2. Actions for annulment of measures ° Natural or legal persons ° Measures of direct and individual concern to them ° Commission Decision addressed to the Member States introducing safeguard measures applicable to imports of a product originating in an associated overseas country or territory ° Undertakings concerned in the associated country or territory ° Identified undertakings having goods in transit

(EEC Treaty, Art. 173, second para.; Council Decision 91/482, Art. 109)

3. Association of the overseas countries and territories ° Implementation by the Council ° Preservation of Community interests by inserting a safeguard clause in the arrangements giving free access to the Community market for agricultural products originating in the associated countries and territories ° Lawful

(EEC Treaty, Art. 136, second para.; Council Decision 91/482, Art. 109)

4. Association of the overseas countries and territories ° Safeguard measures against imports of agricultural products originating in the associated countries and territories ° Conditions for introduction ° Discretion of the Commission

(Council Decision 91/482, Art. 109; Commission Decisions 93/127 and 93/211)

5. Association of the overseas countries and territories ° Safeguard measures against imports of agricultural products originating in the associated countries and territories ° Valid only if necessary

(Council Decision 91/482, Art. 109(2); Commission Decisions 93/127 and 93/211)

6. Association of the overseas countries and territories ° Importation into the Community of products originating in the associated countries and territories ° Prohibition of customs duties and charges having equivalent effect ° Charge having equivalent effect ° Definition ° Levy charged in the event of failure to comply with a minimum price introduced as a safeguard measure ° Excluded

(Council Decision 91/482, Arts 101 and 109)

7. Non-contractual liability ° Conditions ° Legislative measure involving choices of economic policy ° Sufficiently serious breach of a superior rule of law for the protection of the individual ° Breach of the principle of proportionality to be observed in the adoption of safeguard measures against imports of products originating in the associated overseas countries and territories ° Breach of a superior rule of law for the protection of the individual, but insufficiently serious for the Community to incur liability, having regard to the fact that the Commission relied in good faith on inaccurate data which was not challenged by the parties concerned ° Need in any event for unusual damage

(EEC Treaty, Art. 215, second para.; Council Decision 91/482, Art. 109(2))

Summary

1. A claim for annulment is not admissible unless the applicant has an interest in seeing the contested measure annulled. Such an interest presupposes that the annulment of the measure is of itself capable of having legal consequences, and this cannot be ruled out in the case of an act which has in the meantime been implemented or repealed. Under Article 176 of the Treaty, an institution whose act has been declared void is required to take the necessary measures to comply with the judgment, which may involve adequately restoring the original situation in order to eradicate the effects produced by the measure, or refraining from adopting an identical measure.

2. A Commission decision adopted under Article 109 of Decision 91/482 on the association of the overseas countries and territories, addressed to the Member States and fixing as a safeguard measure a minimum import price for a product originating in one of those territories, is of direct concern within the meaning of the second paragraph of Article 173 of the Treaty to undertakings exporting the product from that territory, in so far as it leaves no discretion to the Member States as to the imposition or level of the minimum price in issue.

Notwithstanding its legislative nature, it is also of individual concern within the meaning of the same paragraph to such of those undertakings, known to the Commission from contacts prior to the adoption of the measure, which have goods of the type in question in transit when the measure is adopted. Such undertakings are necessarily among the undertakings concerned whose situation makes it likely that they will suffer damage and must be taken into consideration under Article 109 of Decision 91/482 when examining the suitability of the safeguard measures envisaged, before any decision is adopted.

3. The Council was entitled, on the basis of the second paragraph of Article 136 of the Treaty and with a view to reconciling the principles of the association of the overseas countries and territories (OCT) with the Community and those of the common agricultural policy, to insert in Article 109 of Decision 91/482 concerning that association a safeguard clause authorizing, inter alia, restrictions on the freedom to import agricultural products originating in the OCT if such imports give rise to serious disturbances in a sector of the economy of the Community or one or more of its Member States, or jeopardize their external financial stability, or if difficulties arise which may result in a deterioration in a sector of the Community' s activity or in a region of the Community. In making that choice, which limits only exceptionally, partially and temporarily the freedom to import products from the OCT into the Community, the Council did not go beyond the bounds of its discretionary power under the second paragraph of Article 136 of the Treaty.

4. By providing that the Commission may take or authorize safeguard measures against imports of products originating in the associated overseas countries and territories either if such imports give rise to serious disturbances in a sector of the economy of the Community or one or more of its Member States or jeopardize their external financial stability or if difficulties arise which may result in a deterioration in a sector of the Community' s activity or in a region of the Community, Article 109(1) of Decision 91/482 allows the Commission a broad discretion not only as to the existence of the conditions justifying the adoption of a safeguard measure but also as to whether such a measure should be adopted. When exercising its power of review, the Community judicature must therefore confine itself to considering whether the exercise of that discretion contains a manifest error or constitutes a misuse of power or whether the Commission clearly exceeded the bounds of its discretion.

There was no such defect in the adoption of Decisions 93/127 and 93/211, which introduced and subsequently attenuated safeguard measures in respect of rice originating in the Netherlands Antilles. In the light of the downward trend seen in the price of rice in the Community, coupled with the concurrent increase in imports from the Netherlands Antilles, the Commission was entitled to consider that difficulties had arisen which might result in a deterioration in the Community rice-growing sector and jeopardize the application of the Poseidom programme in the French Overseas Departments, and that the conditions for the adoption of safeguard measures were therefore met.

5. The safeguard measures against products originating in the associated overseas countries and territories authorized by Article 109 of Decision 91/482 may seek only to remedy difficulties encountered in a sector of the economy of the Community or to prevent such difficulties from arising and, under Article 109(2), must be strictly necessary.

Commission Decision 93/127, introducing as a safeguard measure a minimum import price for rice originating in the Netherlands Antilles, must therefore be annulled, since that price was set at a level making such rice more expensive on the Community market not only than Community rice but also than rice from non-member countries, including ACP countries, contrary to the order of preferences to which products of the associated countries and territories are entitled and to the principle of proportionality expressed in Article 109(2).

Decision 93/211 is, however, valid since it restores the minimum price for the same safeguard measure to such a level that the rice in question is placed in an unfavourable competitive position in relation only to Community rice, which the measure is intended to protect.

6. A levy charged on the importation of a product originating in an associated overseas country or territory at a price lower than the minimum price fixed under a safeguard measure introduced pursuant to Article 109 of Decision 91/482 cannot be regarded as a charge having equivalent effect prohibited by Article 101 of that decision, since the obligation to pay it arises not from the crossing of the Community frontier but from the failure to observe the minimum price imposed.

7. The introduction under Article 109 of Decision 91/482 of safeguard measures against imports of products originating in an associated overseas country or territory is a legislative measure involving a choice of economic policy, and the Community therefore cannot incur liability in respect of any unlawful aspect thereof unless it can be held to be a sufficiently serious breach of a superior rule of law for the protection of the individual.

The Commission' s unlawful conduct in adopting, in Decision 93/127, a safeguard measure the detailed provisions of which were not necessary to safeguard the interests of the Community, as is required by Article 109(2) of Decision 91/482, infringes such a rule, the principle of proportionality. The Community does not, however, thereby incur liability since the breach cannot be regarded as sufficiently serious inasmuch as the Commission used in good faith data provided by the national authorities which proved to be inaccurate, whilst the parties concerned did not draw the inaccuracies, of which they were aware, to its attention.

Even if it had been possible for the Community to incur liability as a result of that breach, no entitlement to compensation could have arisen in the absence of damage in excess of that which it has been held that an individual must accept, even where an unlawful act has been committed, without being able to obtain compensation from public funds.