61993O0257

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1. Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Regulation introducing arrangements for trade in bananas with third countries including a scheme for the allocation of a tariff quota among different categories of traders

(EEC Treaty, Art. 173, second para.; Council Regulation No 404/93)

2. Actions for damages ° Independent of action for annulment ° Inadmissibility of the action for annulment directed against a regulation ° No effect on the admissibility of an action seeking compensation for the damage caused by the adoption of that regulation

(EEC Treaty, Arts 178 and 215, second para.)

1. The possibility of determining more or less precisely the number or even the identity of persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them, as provided for in the second paragraph of Article 173 of the Treaty, in so far as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question. In order for a measure to be of individual concern to the persons to whom it applies, it must affect their legal position because of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as a person to whom it is addressed.

A regulation which establishes arrangements for trade in bananas with non-member countries and a mechanism for the allocation of the tariff quota between categories of traders defined according to objective criteria applies to situations which have been determined objectively and has legal effects as regards categories of persons viewed in a general and abstract manner. It is of concern to the applicants only in their objective capacity as traders engaged in the marketing of bananas from third countries in the same way as any other trader in an identical position.

2. The action for damages provided for under Article 178 and the second paragraph of Article 215 of the Treaty was introduced as an autonomous form of action, with a particular purpose to fulfill within the system of actions and subject to conditions on its use dictated by its specific purpose, and hence a declaration of inadmissibility of the application for annulment of a regulation does not automatically render inadmissible the action for damage for the harm allegedly caused by the adoption of that regulation.

In Case C-257/93,

1. Leon Van Parijs, a company governed by Belgian law, established in Antwerp (Belgium),

2. International Fruit Importers NV, a company governed by Belgian law, established in Schoten (Belgium),

3. Bananic International, a company governed by Belgian law, established in Sint-Niklaas (Belgium),

4. International Fruchtimport Gesellschaft Weichert & Co., a company governed by Belgian law, established in Sint-Niklaas (Belgium),

5. Velleman & Tas, a company governed by Netherlands law, established in Rotterdam (Netherlands),

6. Banana Marketing Belgium, a company governed by Belgian law, established in Antwerp (Belgium),

7. Jan Van Den Brink, a company governed by Netherlands law, established in Rotterdam (Netherlands),

represented by P. Vlaemminck and J. Holmens, of the Bar of Ghent (Belgium), with an address for service in Luxembourg at the Chambers of R. Diederich, 8 Rue Zithe,

applicants,

v

1. Council of the European Communities

2. European Communities, represented by

° the Council of the European Communities,

° the Commission of the European Communities,

defendants,

APPLICATION under the second paragraph of Article 173 of the EEC Treaty for the annulment of certain provisions of 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), and under Article 178 and the second paragraph of Article 215 of the Treaty for an order requiring the European Economic Community to make good the damage caused by the adoption of that regulation,

THE COURT,

composed of: O. Due, President, C.N. Kakouris, C.N. Kakouris, G.C. Rodríguez Iglesias and M. Zuleeg (Presidents of Chambers), R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse and P.J.G. Kapteyn, Judges,

Advocate General: C. Gulmann,

Registrar: J.-G. Giraud,

after hearing the Opinion of the Advocate General,

makes the following

Order

1 By application lodged at the Court Registry on 27 April 1993, Leon Van Parijs and six other companies in the banana sector applied under the second paragraph of Article 173 of the EEC Treaty for the annulment of 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) and under Article 178 and the second paragraph of Article 215 of the Treaty for an order requiring the European Economic Community to make good the damage caused by the adoption of that regulation.

2 Title IV of Regulation No 404/93 lays down the rules for trade with non-member countries. It provides that traditional imports of bananas from ACP States to the Community can continue to be carried out, free of customs duties.

Under Article 18(1):

"A tariff quota of two million tonnes (net weight) shall be opened each year for imports of third-country bananas and non-traditional ACP bananas.

Within the framework of the tariff quota, imports of third-country bananas shall be subject to a levy of ECU 100 per tonne and imports of non-traditional ACP bananas shall be subject to zero duty ...".

Pursuant to Article 18(2):

"Apart from the quota referred to in paragraph 1:

° imports of non-traditional ACP bananas shall be subject to a levy of ECU 750 per tonne,

° imports of third country bananas shall be subject to a levy of ECU 850 per tonne".

Article 19(1) provides:

"The tariff quota shall be opened from 1 July 1993 for:

(a) 66.5 % to the category of operators who marketed third country and/or non-traditional ACP bananas,

(b) 30 % to the category of operators who marketed Community and/or traditional ACP bananas;

(c) 3.5 % to the category of operators established in the Community who started marketing bananas other than Community and/or traditional ACP bananas from 1992...".

3 The applicants claim that the provisions of Regulation No 404/93 concerning the imposition of a tariff quota on the import of bananas from non-member countries and the division of that quota between operators who marketed third country and/or non-traditional ACP bananas and operators who marketed Community and/or traditional ACP bananas have a direct and individual effect on them and that those provisions are unlawful and cause them loss.

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

5 Since the documents submitted to the Court contain all the information necessary to enable it to give a ruling on the admissibility of the action for annulment, the Court has decided to determine that issue without hearing oral argument from the parties.

6 The second paragraph of Article 173 of the Treaty enables any natural or legal person to institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

7 Since this application seeks the annulment of provisions of a regulation, it is necessary to determine whether the contested measures are of direct and individual concern to the applicants.

8 As to the question whether the applicants are individually concerned, it is settled law that the possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them in so far as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question (see, for example, the order of the Court of 24 May 1993 in Case C-131/92 Arnaud and Others v Council [1993] ECR I-2573).

9 In order for a measure to be of individual concern to the persons to whom it applies, it must affect their legal position because of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as a person to whom it is addressed (see, for example, the order in Arnauld and the judgment in Case 26/86 Deutz and Geldermann v Council [1987] ECR 941).

10 The purpose of the contested provisions is to establish arrangements for trade in bananas with third countries and a mechanism for the allocation of the tariff quota between categories of traders defined according to objective criteria.

11 Those provisions accordingly apply to situations which have been determined objectively and have legal effects as regards categories of persons viewed in a general and abstract manner.

12 It follows that the contested measure is of concern to the applicants only in their objective capacity as traders engaged in the marketing of bananas from third countries in the same way as any other trader in an identical position.

13 In those circumstances the application must be rejected as inadmissible in so far as it seeks the annulment of the contested provisions of Regulation No 404/93.

14 In so far as the action for damages is concerned, it must be noted that the action provided for under Articles 178 and 215 of the Treaty was introduced as an autonomous form of action, with a particular purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific purpose, and hence a declaration of inadmissibility of the application for annulment does not automatically render the action for damages inadmissible (see, in particular, Case 5/71 Schoeppenstedt v Council [1971] ECR 975).

15 The action continues, therefore, in so far as it seeks an order requiring the European Economic Community to make good the damage caused by the adoption of Regulation No 404/93.

Costs

16 Since the action continues in so far as that it is based on Articles 178 and 215 of the Treaty, the costs must be reserved.

On those grounds,

THE COURT

hereby orders:

1. The application is dismissed as inadmissible in so far as it seeks the annulment of certain provisions of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas;

2. The action continues in so far as it seeks an order requiring the European Economic Community to make good the damage caused by the adoption of Regulation No 404/93;

3. The costs are reserved.

Luxembourg, 21 June 1993.