Keywords
Summary

Keywords

1 Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Tariff quota for banana imports - Regulation fixing a reduction coefficient enabling the importers in question to determine the quantity which will be allocated to them

(EC Treaty, Art. 173, fourth para.; Commission Regulation No 3190/93)

2 Agriculture - Common organization of the markets - Bananas - Import arrangements - Tariff quota - Allocation - Detailed implementing rules - Commission's power to fix a reduction coefficient allowing quota limits to be maintained - Scope - Improper use of powers - None

(Council Regulation No 404/93, Art. 20; Commission Regulation No 3190/93, Art. 1)

3 Agriculture - Common organization of the markets - Bananas - Import arrangements - Tariff quota - Allocation - Detailed implementing rules - Measures adopted by the Commission in Regulation No 1442/93 - Ultra vires the basic regulation - Not ultra vires

(Council Regulation No 404/93; Commission Regulation No 1442/93, Arts 3(1), 5(2) and 7)

4 Non-contractual liability - Commission's liability - Possibility for individuals to rely on the provisions determining the framework within which powers are conferred on the Commission - Not possible

(EC Treaty, Arts 155, 178 and 215, second para.; Council Regulation No 404/93, Art. 20)

Summary

5 Regulation No 3190/93 fixing the uniform reduction coefficient for determining the quantities of bananas to be allocated to each operator in categories A and B in the context of the tariff quota 1994 is of individual concern to operators in those categories. Applying only to operators in categories A or B who had sought and obtained reference quantities for 1994 banana imports, it informs each operator concerned that the quantity of bananas he was entitled to import under the tariff quota in question may be determined by applying the stated uniform reduction coefficient to his reference quantity. Inasmuch as the only legislative function of the regulation is to fix and publish this reduction coefficient figure, it has the immediate and direct effect of enabling each operator to ascertain his own precise entitlement. The regulation must therefore be construed as a collection of individual decisions addressed to each operator effectively informing him of the precise quantities which he will be entitled to import in 1994.

Since it does not allow Member States any margin of discretion in relation to the issue of import licences, the regulation is also of direct concern to such operators, who may therefore apply for its annulment under the fourth paragraph of Article 173 of the Treaty.

6 Article 20 of Regulation No 404/93 on the common organization of the market in bananas does not preclude the Commission from adopting detailed implementing rules which, although not expressly referred to in that provision, are necessary for the functioning of the import arrangements for this sector. In that connection, it is essential to the operation of the tariff quota, which forms part of those arrangements, to fix a reduction coefficient so that, where the demand for import licences exceeds the quota, it is possible to maintain both the quota and the principle of the operators' right to a share of the quota.

In fixing such a coefficient pursuant to Article 1 of Regulation No 3190/93, the Commission did not exceed the bounds of its discretion or make improper use of that discretion which it is entitled to exercise in the Community interest when laying down the rules of the common organization of the markets. Although the operators concerned were undoubtedly affected in different ways by the introduction of the common organization of the markets, this difference in treatment is an inevitable consequence of the need to take into account the different situations in which the operators found themselves and is inherent in the objective of integrating the hitherto partitioned markets.

Furthermore, the Commission was not obliged to accept without verification the figures submitted by the Member States regarding the reference quantities to allocate to the various operators. Such variations as remained after the Commission had procured corrections in at least some of the reference quantities originally submitted by the Member States do not establish any invalidity in the reduction coefficient adopted on the basis of the corrected figures.

Lastly, the belated establishment of the forecast supply balance used as a basis of the tariff quota to which the reduction coefficient was applied does not invalidate that coefficient, since the Commission was faced with difficulties in obtaining from the Member States exact figures which it needed and since, in those circumstances, it had no option but to calculate the coefficient solely on the basis of a provisional figure.

7 By defining, in Article 3(1) of Regulation No 1442/93 laying down detailed rules for the application of the arrangements for importing bananas into the Community, the terms `operators' and `secondary importer', by including in Article 3(1)(c) ripeners in the category of operators entitled to a tariff quota, and by fixing in Article 5(2) of that regulation weighting coefficients which vary according to the risk borne by the different operators, the Commission did not exceed the powers conferred on it by Regulation No 404/93 on the common organization of the market in bananas. Furthermore, it did not breach the principle of legal certainty by omitting, in Article 7 of that regulation, to determine the supporting documents which the operators must submit to the competent authorities in the Member States.

8 Since Article 155 of the Treaty, in conjunction with Article 20 of Regulation No 404/93 on the common organization of the market in bananas, determine the framework within which the Commission is empowered to adopt such detailed rules as are necessary for the implementation of the common organization of the markets in question, those provisions cannot be relied on, as such, by individuals for the purposes of bringing actions for damages against the Commission on the basis of Article 178 and the second paragraph of Article 215 of the Treaty.