Avis juridique important

Order of the President of the Court of 18 October 1991. - Abertal SAT Ltda and others v Commission of the European Communities. - Specific measures for nuts and locust beans - Changes to the detailed rules for applying them. - Case C-213/91 R. European Court reports 1991 Page I-05109

Summary Parties Grounds Operative part

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Application for interim measures - Suspension of operation - Conditions for grant - Serious and irreparable damage - Financial loss

(EEC Treaty, Art. 185; Rules of Procedure of the Court, Art. 83(2) )

The urgency of an application for interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim measure. That party is required, however, to adduce adequate evidence that he could not await the outcome of the main proceedings without personally suffering serious and irreparable damage.

Damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he suffered the damage.

In Case C-213/91 R,

Abertal, S.A.T. Ltda,

Agroalmendra, S.A.T.,

Agroles, S. Coop. Ltda,

Agrupación de Productores de Almendra del Mediterráneo, S. Coop.,

Almendras e Aragón, S.A.T. Ltda,

Almendrera Aragónesa, S. Coop.,

Bajo Aragón Turolense, S.A.T.,

Coato Sociedad Cooperativa de Comercialización Agraria,

Cobuco S.C.L. Cooperativa de Fruta de Almendras,

Comercial Garrofa, S. Coop. Ltda.,

Cooperativa Agrícola y Ganadera de Alicante,

Cooperativa Agrícola y Secció de Credit de la Selva del Camp,

Crisol de Frutos Secos, S.A.T.,

Frutsec Sociedad S. Coop. Ltda,

Fruits Secs Catalans, S.A.T. Ltda,

Fruits Secs de Les Garrigues, S. Coop.,

Fruticoltores Asociados de la Ribera del Ebro, S. Coop.,

Montaña-Vinalopo, S. Coop.,

Unión Agraria Cooperativa Ltda.,

Uteco de Zaragoza, S. Coop.,

Spanish producers' organizations, represented by F. Pombo García, R. García Vicente and I. Igartua Arregui, of the Madrid Bar, with an address for service in Luxembourg at the Chambers of C. Wassenich, 6 Rue Dicks,

applicants,

v

Commission of the European Communities, represented by F. Santaolalla Gadea and E. de March, Legal Advisers, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of the Commission' s Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for suspension of the operation of Article 1 of Commission Regulation (EEC) No 1304/91 of 17 May 1991 amending Commission Regulation (EEC) No 2159/89 of 18 July 1989 laying down detailed rules for applying the specific measures for nuts and locust beans as provided for in Title IIa of Council Regulation (EEC) No 1035/72 (Official Journal 1991 L 123, p. 27),

THE PRESIDENT OF THE COURT OF JUSTICE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

1 By application received at the Court Registry on 10 August 1991, Abertal S.A.T. Ltda and 19 other Spanish producers' organizations brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of Article 1 of Commission Regulation (EEC) No 1304/91 of 17 May 1991 amending Commission Regulation (EEC) No 2159/89 of 18 July 1989 laying down detailed rules for applying the specific measures for nuts and locust beans as provided for in Title IIa of Council Regulation (EEC) No 1035/72 (Official Journal 1991 L 123, p. 27).

2 By a separate document lodged at the Court Registry on 12 August 1991, the applicants also applied for interim measures under Article 185 of the EEC Treaty, seeking suspension of the operation of the abovementioned provision of the said Commission regulation until the Court had given judgment in the main proceedings.

3 The Commission submitted written observations on the application for interim measures on 2 September 1991 and the parties presented oral argument on 23 September 1991.

4 Before the substance of the application for interim measures is considered, it is appropriate to give brief details of the legislation relevant to it and the subject-matter of the main proceedings.

5 Council Regulation (EEC) No 789/89 of 20 March 1989 instituting specific measures for nuts and locust beans and amending Council Regulation (EEC) No 1035/72 of 18 May 1972 on the common organization of the market in fruit and vegetables (Official Journal 1989 L 85, p. 3) inserted a Title IIa in Regulation No 1035/72, as amended.

6 Title IIa of Regulation No 1035/72 lays down certain aid measures for nuts and locust beans which, according to the preamble to Regulation No 789/89, are intended to remedy the structural deficiencies of the market in those products, since that market is markedly out of step with technical and commercial requirements from the point of view of both the technical production conditions, typified by a large number of small holdings and a low level of mechanization, and marketing conditions.

7 The envisaged aid measures are, inter alia, the grant of additional flat-rate aid, as an incentive for formation, to producers' organizations (Article 14b of Regulation No 1035/72), specific aid for those organizations in order to set up a revolving fund (Article 14c of Regulation No 1035/72) and, finally, aid for the implementation of quality and marketing improvement plans submitted by those organizations and approved by the national authorities (Article 14d of Regulation No 1035/72).

8 The improvement plans envisaged by the latter provision have as their aim "the improvement, by means of varietal conversion or cultural improvement, of the quality of produce from orchards which are given over to producing one homogeneous crop and are not scattered among other plantations and, where needed, the improvement of marketing".

9 Pursuant to Article 14d of Regulation No 1035/72, approved improvement plans are to qualify for their implementation for Community aid of 45% where they are funded to a level of 45% by the producers' organizations and to a level of 10% by the Member State. The Community aid and the contribution from the Member State are subject to a ceiling and are to be paid over a period of 10 years.

10 The conditions laid down for the approval of improvement plans and, inter alia, the procedures for payment of the aid for their implementation were laid down in Regulation No 2159/89. That Commission regulation was amended on a first occasion by Commission Regulation (EEC) No 3403/89 and 13 November 1989 (Official Journal 1989 L 328, p. 23). The latter regulation introduced the possibility of obtaining advances on the aid for the implementation of improvement plans.

11 Article 1 of Regulation No 1304/91 makes certain changes to the provisions of Regulation No 2159/89, as amended, which the applicants, as producers' organizations with approved improvement plans in the course of implementation, regard as unlawful in so far as they apply to them.

12 In the first place, the contested regulation amends Article 8(4) of Regulation No 2159/89, which relates to requests to change plans which have already been approved. Such requests for changes, justified for technical reasons or a by desire to extend the area covered by the plan, in particular following an increase in the number of member producers, must be the subject of a decision by the competent national authority in accordance with the procedures applicable to initial approval of the improvement plan. Under the amended provision, only one request may be made to change a plan that has already been approved on the grounds of a wish to extend the surface area covered by the plan, and the request may be submitted only as from the fourth year following approval of the plan. According to the preamble to the contested regulation, that time limit should enable an assessment of the stability of the organization in question and of progress in implementing the improvement plan to be made.

13 Secondly, the contested regulation has amended Article 19 of Regulation No 2159/89 concerning the payment of Community aid in respect of improvement plans. In order to receive such aid, the organizations are to submit an application to the competent national authority at the end of each annual period of implementation of the plan. The aid applications must be accompanied by the invoices and all other documentary evidence of the work done. As a result of the amendment, aid applications are required to include all necessary information to enable the geographical location of that section of the orchard covered by each type of work carried out and the invoices and supporting documents must give a detailed reference to the part of the orchard in which the work in question has been carried out. That additional information should, according to the preamble to the contested regulation, enable the progress made in carrying out the work throughout the entire area of the orchards covered by an improvement plan to be monitored and checked.

14 Thirdly, the contested regulation amends Article 22a(3) of Regulation No 2159/89 which concerns advances on the annual aid for implementing improvement plans. The maximum amount of the advance, previously 80% of the aggregate contribution of the Member State and of the Community to the estimated annual implementation costs, was reduced to 50% of the Community annual financial contribution, the payment of the advance being conditional upon effective payment of 50% of the Member State' s contribution. In order to obtain the advance, the recipient organizations must submit proof that the annual phase of implementation has begun. That proof was previously required to relate to at least 20% of the estimated annual cost but the contested regulation raised that figure to at least 50%. Finally, under the amended provision, no advance may be made before all payments relating to the previous annual phase have been completed under the conditions laid down, inter alia, in Article 19 of Regulation No 2159/89, as amended. The changes thus made to the detailed rules for paying advances are intended, according to the preamble to the contested regulation, to ensure that Community funds are properly used.

15 Pursuant to Article 2 of Regulation No 1304/91, those amendments entered into force on 21 May 1991.

16 Pursuant to Article 185 of the EEC Treaty, actions before the Court of Justice are not to have suspensory effect. However, the Court of Justice may, if it considers that the circumstances so require, order that application of the contested act be suspended.

17 Pursuant to Article 83(2) of the Rules of Procedure, a decision suspending the operation of an act of an institution is conditional upon the existence of circumstances giving rise to urgency and pleas of fact and law establishing a prima facie case for the grant of the suspension of operation.

18 The Court has consistently held that the urgency of an application for interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim measure. That party is required, however, to adduce adequate evidence that he could not await the outcome of the main proceedings without personally suffering serious and irreparable damage.

19 As regards the amendment made to Article 19 of Regulation No 2159/89, the applicants maintain that the obligation to submit invoices and supporting documents containing specific references to the part of the orchard where the works concerned were carried out is an obligation which it is impossible to satisfy for the purposes of the forthcoming applications for annual aid. Since no transitional measures are provided for, that obligation applies retroactively to the invoices already drawn up and the invoices for work already carried out which make no precise reference to the part of the orchard to which the work related. Being unable to meet that obligation, the applicants would be unable to obtain either full payment of the aid for the year of implementation in course or even, if the application has not yet been made, for the previous year of implementation, nor the advance for the following year of implementation. The implementation of the improvement plans and the viability of the applicant organizations would thus be endangered.

20 It need merely be stated in that regard that it is apparent from the observations lodged by the Commission that the obligation to indicate the part of the orchard in question relates only to the invoices and supporting documents drawn up after the entry into force of Regulation No 1304/91. At the hearing, the Commission also stated that it considered that the new rules were not applicable to invoices which, although drawn up after the entry into force of Regulation No 1304/91, related to works for which it would no longer be feasible to provide a precise reference to the part of the orchard concerned.

21 As regards the amendment to Article 8(4) of Regulation No 2159/89, the applicants submit that the prohibition of extending the area covered by an approved plan by reason of an increase in the number of producer members affects those of their members who did not wish to take part in the improvement plans ab initio but envisaged doing so at a later stage. Since members must, by virtue of Article 2(4)(d) of Regulation No 2159/89, belong to producers' organizations for at least three years, the prohibition of extending the areas covered by the plans would create serious tension between members. Moreover, producers who are not yet members of a producers' organization would, in order to be able to take part in an improvement plan and benefit from the aid, need to set up other organizations and promote the drawing up and approval of new plans, which would lead to a waste of human resources and excessive bureaucratic formalities.

22 It must be stated that the damage thus referred to, even assuming that it may be regarded as affecting the applicants personally, certainly cannot be considered as sufficiently serious to justify the grant of a suspension of operation.

23 As far as the amendment to Article 19(3) of Regulation No 2159/91 is concerned, the applicants claim that it leads not only to a decrease in the amount of the advances but also to a postponement of their payment. The financing of the implementation of the improvement plans thus falls, in a manner which was not foreseeable, more heavily on the organizations themselves. Certain organizations may thus be obliged, in order to meet their commitments, to have recourse to credit establishments with a resultant increase in the charges to be borne by them. Producers' organizations are obliged to revise their improvement plans so as to make them less ambitious and certain producers, unable to bear the increased charges, must withdraw from plans that were in the course of implementation. As result, contrary to the objective of the rules concerned, there is a decrease in productivity and a loss of competitiveness. Another possible consequence might even be the abandonment of plots of land which would result in their deterioration and increased risks of fire.

24 It must be stated that the increase in financial charges referred to by the applicants constitutes damage of a pecuniary nature. Damage of that kind cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he suffered the damage. As to the risk referred to by the applicants that the increased burden of financial charges entails other consequences of an irreparable nature, it must be stated that the existence of such a risk has not been established with the degree of probability required for the grant of a suspension of operation.

25 It follows from the foregoing that the application for a suspension of operation does not satisfy the condition concerning urgency.

26 The application for interim measures must therefore be dismissed, without its being necessary to consider the Commission' s argument that the application is inadmissible by virtue of the manifest inadmissibility of the application in the main proceedings.

On those grounds,

THE PRESIDENT

hereby orders as follows:

1. The application for interim measures is dismissed;

2. The costs are reserved.

Luxembourg, 18 October 1991.