Avis juridique important

Order of the President of the Court of 29 November 1978. - Simmenthal SpA v Commission of the European Communities. - Case 243/78 R. European Court reports 1978 Page 02391

Parties Grounds Decision on costs Operative part

IN CASE 243/78 R

SIMMENTHAL S.P.A ., HAVING ITS REGISTERED OFFICE IN APRILIA ( ITALY ), REPRESENTED AND ASSISTED BY EMILIO CAPPELLI AND PAOLO DE CATERINI , ADVOCATES OF THE ROME BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF CHARLES TURK , 4 RUE NICHOLAS WELTER ,

APPLICANT ,

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , PETER KALBE , ACTING AS AGENT , ASSISTED BY GUIDO BERARDIS , A MEMBER OF THE LEGAL SERVICE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

THE FIRST HEAD OF CLAIM

1THE FIRST HEAD OF CLAIM OF THE APPLICATION SEEKS THE SUSPENSION , LIMITED , WHERE APPROPRIATE , TO THE RESULTS OF THE NOTICE OF INVITATION TO TENDER NO IT P 4 ( PUBLISHED IN THE OFFICIAL JOURNAL C 225 OF 22 SEPTEMBER 1978 ), OF THE EFFECTIVENESS OF THE COMMISSION ' S DECISION OF 27 OCTOBER 1978 , AND AN ORDER THAT THE COMMISSION SHOULD GIVE THE NECESSARY INSTRUCTIONS TO THE ITALIAN AUTHORITIES TO SUSPEND THE CONCLUSION OF CONTRACTS OF PURCHASE WITH SUCCESSFUL TENDERERS AND THE ISSUE OF THE CORRESPONDING IMPORT LICENCES .

2PURSUANT TO ARTICLE 1 THAT DECISION , THE ANNULMENT OF WHICH IS SOUGHT BY THE APPLICANT IN ITS PRINCIPAL ACTION , FIXES THE MINIMUM PRICES FOR FROZEN BEEF STORED BY THE INTERVENTION AGENCIES WHICH WERE TO BE ADOPTED FOR ADJUDICATING THE INVITATION TO TENDER HELD IN ACCORDANCE WITH REGULATION ( EEC ) NO 2900/77 FOR THE FINAL QUARTER OF 1978 .

3ARTICLE 2 FIXES , FOR THE PERIOD 1 OCTOBER TO 31 DECEMBER 1978 , THE MAXIMUM QUANTITIES OF MEAT INTENDED FOR THE PROCESSING INDUSTRY TO BE ACCEPTED FOR IMPORTATION WITH TOTAL SUSPENSION OF THE LEVY .

4THE DECISION IN QUESTION NOT ONLY CONCERNS THE INTERESTS OF THE APPLICANT BUT ALSO IMPINGES UPON THE INTERESTS OF ALL THIRD PARTIES WHO SUBMITTED OFFERS IN CONNEXION WITH THE INVITATION TO TENDER IN QUESTION .

5THE SUSPENSION OF THE EFFECTIVENESS OF THE DECISION , EVEN IF IT WERE LIMITED TO THE RESULTS OF INVITATION TO TENDER NO IT P 4 , WOULD AMOUNT , AT LEAST TEMPORARILY , TO DEPRIVING OTHER TENDERERS , WHO ARE NOT PARTIES TO THE DISPUTE AND HAVE NOT BEEN HEARD , OF THE BENEFIT OF CONCLUDING A CONTRACT FOR THE PURCHASE OF FROZEN MEAT STORED BY THE ITALIAN INTERVENTION AGENCY AND OF BEING ISSUED WITH AN IMPORT LICENCE WHICH THEY ARE ENTITLED TO DEMAND PURSUANT TO THE RULES IN FORCE .

6EVEN IF IT IS ACCEPTED THAT THE COURT IS EMPOWERED TO ADOPT , IN THE CONTEXT OF AN URGENT PROCEDURE AND ON AN INTERIM BASIS , A MEASURE HAVING SO SERIOUS AN EFFECT ON THE RIGHTS AND INTERESTS OF THIRD PARTIES , THAT COURSE OF ACTION COULD BE JUSTIFIED ONLY IF IT APPEARED THAT , IN THE ABSENCE OF SUCH MEASURE , THE APPLICANT WOULD BE EXPOSED TO A SITUATION WHICH THREATENED ITS VERY EXISTENCE .

7THE APPLICANT HAS NOT PUT FORWARD EVIDENCE OF CIRCUMSTANCES WHICH MIGHT , PRIMA FACIE , JUSTIFY SUCH A SUBMISSION .

8ON THE CONTRARY , IT IS CLEAR FROM THE APPLICANT ' S OBSERVATIONS THAT UP TO NOW IT HAS SUCCEEDED IN OBTAINING SUPPLIES , ALBEIT UNDER DIFFICULT CONDITIONS .

9MOREOVER , THE APPLICANT DID NOT CHALLENGE THE CORRESPONDING COMMISSION DECISIONS CONCERNING THE SECOND AND THIRD QUARTERS OF 1978 .

10ACCORDINGLY , IT DOES NOT APPEAR THAT THE IMPLEMENTATION OF THE DECISION CONCERNING THE FOURTH QUARTER OF 1978 IS LIKELY TO POSE A SERIOUS THREAT TO THE EXISTENCE OF THE APPLICANT .

11IN THOSE CIRCUMSTANCES , THE APPLICATION MUST BE DISMISSED AS TO ITS FIRST HEAD .

THE SECOND HEAD OF CLAIM

12THE SECOND HEAD OF CLAIM OF THE APPLICATION SEEKS THE SUSPENSION , UNTIL PUBLICATION OF THE FINAL JUDGMENT IN CASE 92/78 , OF THE APPLICATION OF THE SPECIAL ARRANGEMENTS FOR THE IMPORTATION OF FROZEN MEAT INTENDED FOR THE PROCESSING INDUSTRY FOR 1979 .

13THAT REQUEST MUST BE UNDERSTOOD AS REFERRING TO THE COMPLEX OF REGULATIONS ADOPTED BY THE COMMISSION IN IMPLEMENTATION OF THE ' ' LINKING ' ' SYSTEM PROVIDED FOR IN ARTICLE 14 ( 3 ) ( B ) OF REGULATION NO 805/68 IN THE VERSION AMENDED BY COUNCIL REGULATION NO 425/77 .

14THE APPLICANT REQUESTS THAT THE EFFECTIVENESS OF THOSE RULES BE SUSPENDED PROVISIONALLY AND THAT THE COMMISSION SHOULD REFRAIN FROM ADOPTING IMPLEMENTING MEASURES BASED ON THOSE RULES , WITH EFFECT FOR THE WHOLE COMMUNITY .

15IN ADOPTING THE RULES IN QUESTION THE COMMISSION EXERCISED POWERS GIVEN TO IT BY THE COUNCIL UNDER THE TERMS OF THE SAID ARTICLE 14 IN ORDER TO AVOID THE OCCURRENCE OF DISTURBANCES ON THE MARKET IN BEEF AND VEAL .

16SUSPENSION OF APPLICATION OF THE RULES IN QUESTION WOULD HAVE SERIOUS EFFECTS ON THE MARKET IN QUESTION AND WOULD ADVERSELY AFFECT THE INTERESTS OF AN INCALCULABLE NUMBER OF AGRICULTURAL PRODUCERS AND TRADERS THROUGHOUT THE COMMUNITY .

17THE APPLICANT HAS NOT DEMONSTRATED THE EXISTENCE OF CIRCUMSTANCES IN EVIDENCE OF AN INDIVIDUAL INTEREST , THE SAFEGUARDING OF WHICH COULD JUSTIFY , PRIMA FACIE , THE INTERIM MEASURE REQUESTED .

18SUCH MEASURE , BY REASON OF ITS SCOPE AND POSSIBLE CONSEQUENCES , WOULD BE OUT OF ALL PROPORTION TO THE APPLICANT ' S INTEREST .

19THE SECOND HEAD OF CLAIM SHOULD THEREFORE ALSO BE DISMISSED .

20THE DECISION ON COSTS SHOULD BE RESERVED UNTIL THE FINAL JUDGMENT IN CASE 243/78 .

ON THOSE GROUNDS ,

THE PRESIDENT ,

BY WAY OF INTERLOCUTORY DECISION ,

HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATION FOR INTERIM MEASURES IS DISMISSED ;

2 . COSTS ARE RESERVED .