Avis juridique important

Order of the President of the Court of First Instance of 6 April 2000. - Emesa Sugar (Free Zone) NV v Commission of the European Communities. - Association regime for overseas countries and territories - Decisions 91/482/EEC and 97/803/EC - Regulation (EC) No 2553/97 - Proceedings for interim measures. - Case T-44/98 R II. European Court reports 2000 Page II-01941

Parties Grounds Operative part

Applications for interim measures - Suspension of operation of a measure - Interim measures - Application which must be regarded as having no basis following a judgment of the Court of Justice - Release of a security furnished in the form of a bank guarantee for the benefit of the Community

(EC Treaty Arts 185 and 186 (now Arts 242 and 243 EC))

In Case T-44/98 R II,

Emesa Sugar (Free Zone) NV, established in Oranjestad, Aruba, represented by G. van der Wal, Advocate with a right of audience before the Hoge Raad der Nederlanden, with an address for service in Luxembourg at the Chambers of A. May, 398 Route d'Esch,

applicant,

supported by

Government of Aruba, represented by P.V.F. Bos and M. Slotboom, of the Rotterdam Bar, with an address for service in Luxembourg at the Chambers of Loesch and Wolter, 11 Rue Goethe,

intervener,

v

Commission of the European Communities, represented by T. van Rijn, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

Council of the European Union, represented by J. Huber and G. Houttuin, Legal Advisers, acting as Agents, with an address for service in Luxembourg at the office of Alessandro Morbilli, General Counsel, Legal Affairs Directorate, European Investment Bank, 100 Boulevard Konrad Adenauer,

by

Kingdom of Spain, represented by M. López-Monis Gallego, Abogado del Estado, acting as Agent, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,

and by

French Republic, represented by C. Chavance, Secretary for Foreign Affairs, Directorate for Legal Affairs, Ministry of Foreign Affairs, acting as Agent, with an address for service in Luxembourg at the French Embassy, 8B Boulevard Joseph II,

interveners,

APPLICATION, first, for suspension of the operation of the Commission Decision of 23 December 1997 (VI/51329) rejecting a request by the applicant for the issue of import licences in respect of sugar products until the Court of First Instance gives a ruling on the substance of the case and, second, for interim measures prohibiting the Commission from applying, during the same period, the provisions of Commission Regulation (EC) No 2553/97 of 17 December 1997 on rules for issuing import licences for certain products covered by CN codes 1701, 1702, 1703 and 1704 and qualifying as ACP/OCT originating products (OJ 1997 L 349, p. 26) and/or Article 108b of Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community (OJ 1991 L 263, p. 1), as amended, in so far as those provisions have the effect of limiting the importation into the Community of sugar from the overseas countries and territories,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Legal context and facts

1 The legal background and the facts of this case were set out in detail in the order of the President of the Court of First Instance of 30 April 1999 in Case T-44/98 R II Emesa Sugar v Commission [1999] ECR II-1427, hereinafter the order of 30 April 1999, and reference is therefore made to paragraphs 1 to 25 of that order.

Procedure

2 By application lodged at the Registry of the Court of First Instance on 10 March 1998, the applicant brought under the fourth paragraph of Article 173 of the EC Treaty (now, after amendment, the fourth paragraph of Article 230 EC) an action, registered as Case T-44/98, for the annulment of the Commission decision of 23 December 1997 (VI/51329, hereinafter the contested decision) which dismissed as inadmissible the application which it had submitted under Article 8(3) of Commission Regulation (EC) No 2553/97 of 17 December 1997 on rules for issuing import licences for certain products covered by CN Codes 1701, 1702, 1703 and 1704 and qualifying as ACP/OCT originating products (OJ 1997 L 349, p. 26, hereinafter the implementing regulation) for the issue of import licences for 3 010 tonnes of sugar qualifying as ACP/OCT originating products (hereinafter OCT-origin sugar).

3 By separate document received at the Registry of the Court of First Instance on 10 April 1998 the applicant also initiated proceedings under Articles 185 and 186 of the EC Treaty (now Articles 242 EC and 243 EC) for, first, suspension of the operation of the contested decision until the Court gives judgment on the substance of the case and, second, an order prohibiting the Commission from applying, during the same period, the provisions of the implementing regulation and/or Article 108b of Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community (OJ 1991 L 263, p. 1, the OCT decision), as amended, in so far as those provisions have the effect of limiting imports into the Community of sugar originating in the overseas countries and territories.

4 By order of 14 August 1998 in Case T-44/98 R Emesa Sugar v Commission [1998] ECR II-3079, the President of the Court of First Instance dismissed that application for interim measures.

5 On appeal by the applicant, that order was set aside by order of the President of the Court of Justice of 17 December 1998 in Case C-364/98 P(R) Emesa Sugar v Commission [1998] ECR I-8815, which referred the case back to the Court of First Instance.

6 After the case was referred back to the Court of First Instance and following a written procedure and oral procedure and an exchange of letters following a request for information by the judge hearing the application for interim measures, the latter, by order of 30 April 1999, granted the application for such measures on the terms set out in the operative part thereof.

7 On 30 July 1999 the applicant applied for renewal of the interim measures granted by the President of the Court of First Instance in his order of 30 April 1999.

8 The other parties to the proceedings were invited to submit their observations on that application. The Kingdom of Spain and the French Republic did not respond to that invitation.

9 The Government of Aruba submitted its observations on that application on 3 September 1999 and the Commission and the Council submitted their observations on 8 September 1999.

10 At the request of the judge hearing the application for interim measures, the applicant responded, by letter of 17 September 1999, to the objections raised by the Commission and the Council in their observations of 8 September 1999.

11 On 29 September 1999 the judge hearing the application for interim measures made an order (Case T-44/98 R II Emesa Sugar v Commission [1999] ECR II-2815, hereinafter the order of 29 September 1999), the operative part of which is as follows:

1. For the reasons set out in the order of the President of the Court of First Instance of 30 April 1999 in Case T-44/98 R II Emesa Sugar v Commission [1999] ECR II-1427 and in accordance with paragraph 1 of the operative part of that order, the operation of Article 108b of Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community, of Commission Regulation (EC) No 2553/97 of 17 December 1997 on rules for issuing import licences for certain products covered by CN Codes 1701, 1702, 1703 and 1704 and qualifying as ACP/OCT-originating products and of the Commission decision of 23 December 1997 (VI/51329) is suspended in relation to Emesa Sugar (Free Zone) NV.

2. Emesa Sugar (Free Zone) NV is authorised to export to the Community milled sugar originating in the overseas countries and territories (OCT) within the meaning of Article 6 of Annex II to Decision 91/482 and in accordance with the conditions set out in that decision, as in force until 30 November 1997, subject to the following conditions and restrictions:

- the authorised imports will be subject to the provisions of Decision 91/482 applying prior to the entry into force of Council Decision 97/803/EC of 24 November 1997 amending at mid-term Decision 91/482 and, in particular, to the obligation to obtain an import licence in accordance with Article 5(1) of Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products, the obligation to obtain an EUR-I certificate and the obligation to furnish security of 3 euro per tonne, which will be released if the goods are imported in conformity with the import licence;

- the maximum quantity authorised for importation will be 7 500 tonnes for the period from 31 October 1999 to 29 February 2000. After 29 February 2000, Emesa Sugar (Free Zone) NV may continue importing into the Community (i) subject to the limit of 7 500 tonnes and (ii) in accordance with the conditions laid down in this paragraph of the operative part the sugar which is delivered to it free on board (FOB) before that date;

- the OCT-origin sugar imported into the Community will be sold at a price at least equal to the intervention price referred to in Article 3(1)(a) of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector;

- Emesa Sugar (Free Zone) NV may import OCT-origin sugar into the Community on the condition that security is furnished in the form of a bank guarantee for a sum of USD 28 per tonne of sugar which it wishes to import in accordance with the present order. Such security must be provided not later than the date on which the sugar is presented to the customs authorities for declaration and must cover the tonnage presented. The amount of the security to be provided per tonne of sugar shall be increased or reduced:

- depending on any rise or fall in the intervention price referred to by Article 3(1)(a) of Regulation No 1785/81;

- depending on any rise or fall in the guaranteed price referred to by Article 5(4) of Protocol No 8 of the Fourth ACP-EC Convention signed in Lomé on 15 December 1989.

The reference point for the reduction or increase in the amount of the security shall be the intervention price or the guaranteed price on 31 October 1999:

- the total amount of the security provided shall be released, on order of the judge hearing the application for interim measures, for the benefit of the Community if the Court of Justice rules, during the period from 31 October 1999 to 29 February 2000, that Article 108b is not invalid in the judgment to be given in Case C-17/98;

- during the period of validity of the interim measure ordered, Emesa Sugar (Free Zone) NV shall not be entitled to lodge an application for an import licence under Regulation No 2553/97.

3. If the judgment of the Court of Justice in Case C-17/98 is delivered during the period from 31 October 1999 to 29 February 2000:

- the present proceedings for interim measures (registered under number T-44/98 R II) will be resumed if the Court of Justice does not rule that Article 108b of Decision 91/482 is invalid and the parties will be requested to submit their written observations on the judgment of the Court of Justice. The further steps which the judge hearing the application for interim measures proposes to prescribe in the present proceedings will be set out in a new order; however, Emesa Sugar (Free Zone) NV may continue to import into the Community the sugar which is delivered to it free on board (FOB) before the date on which the judgment of the Court of Justice is delivered, (i) subject to a maximum of 7 500 tonnes, (ii) during the six-month period expiring on 29 February 2000 and (iii) in accordance with the conditions set out under point 2 above;

- this order shall continue to have effect until 29 February 2000 if the Court of Justice rules that Article 108b of Decision 91/482 is invalid and if the Court of First Instance has not given judgment in the case in the main proceedings (registered under number T-44/98).

...

12 By order of the Court of Justice of 4 February 2000 (Case C-17/98 Emesa Sugar [2000] ECR I-665), the application by representatives of the applicant and by the Government of Aruba for leave to submit written observations following delivery of the Advocate General's Opinion in the case was dismissed.

13 On 8 February 2000, the Court of Justice delivered judgment in Case C-17/98 Emesa Sugar [2000] ECR I-675, hereinafter the Emesa Sugar judgment).

14 In accordance with the first indent of paragraph 3 of the operative part of the order of 29 September 1999, the parties were invited, by letter from the Registry of the Court of First Instance of 14 February 2000, to submit their observations on the Emesa Sugar judgment.

15 The Kingdom of Spain, the applicant and the French Republic lodged their observations on 18, 21 and 28 February 2000 respectively. The Commission, the Council and the Government of Aruba lodged their observations on 29 February 2000.

16 On 17 March 2000, the applicant, having been granted leave to do so by the judge hearing the application for interim measures, submitted further observations in reply to those submitted by the Commission and the Council.

Law

17 By order of 30 April 1999, the judge hearing the application for interim measures decided that the circumstances were such that the requisite interim measures should be ordered.

18 By order of 29 September 1999, he decided that those measures should be extended.

19 In the Emesa Sugar judgment, the Court of Justice ruled:

Examination of the ... questions submitted has disclosed no factor of such a kind as to affect the validity of Council Decision 97/803/EC of 24 November 1997 amending at mid-term Decision 91/482/EEC on the association of the overseas countries and territories with the European Economic Community (paragraph 1 of the operative part).

20 It is now incumbent on the judge hearing the application for interim measures to give a decision on that application.

Arguments of the parties

21 In its observations of 21 February 2000, the applicant makes several complaints concerning the Emesa Sugar judgment, submitting that no account should be taken of it by the judge hearing the application for interim measures and that, consequently, the judge should defer his decision on the execution of the security furnished in the form of a bank guarantee and of the costs in the proceedings for interim measures until the Court of First Instance gives judgment in the main proceedings in Case T-43/98 Emesa Sugar v Council and Case T-44/98.

22 First, it contends that the Emesa Sugar judgment was delivered in breach of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in that the applicant had no opportunity to submit its written observations on the Opinion of the Advocate General.

23 Second, the Emesa Sugar judgment contains, in its submission, manifest errors and factual inaccuracies. First, the Court of Justice referred to significant disturbances in the functioning of a common market organisation as justification for the reduction of the advantages granted to the OCT. However, the reality of those significant disturbances was not examined at any point. Moreover, the Court of Justice disregarded the factual evidence providing a basis for examining the proportionality of the measure reducing sugar imports into the Community, set out by the applicant in its pleadings and contained in the order of 30 April 1999. Finally, the applicant contests the statements contained in paragraph 57 of the Emesa Sugar judgment, to the effect that, first, there were traditional imports of sugar from the OCT and a risk of artificial diversion of products from the ACP States as a result of unlimited application of the cumulation of origin rule and, second, the industrial activity concerned contributes only to a modest extent to the development of the OCT.

24 The Government of Aruba subscribes to those arguments.

25 In its observations dated 17 March 2000, the applicant contends that the submissions of the Commission and the Council to the effect that it should pay customs duties on the quantities of sugar imported into the Community under the interim measures are unfounded.

26 The Commission, supported by the Council, contends that, having regard to the fifth indent of paragraph 2 of the operative part of the order of 29 September 1999 and to the Emesa Sugar judgment, the security furnished in the form of a bank guarantee should be released for the benefit of the Community.

27 It also considers that the applicant should be declared liable to pay customs duties, as payable at the date of the imports, on the quantities of sugar that the applicant imported into the Community under the interim measures. The requirement of a security, regarding which the Commission gave its consent, does not change the extent of the applicant's obligation to pay those duties. The Council fully endorses that argument.

28 The Kingdom of Spain contends that, in view of the fact that examination of the issues referred to the Court of Justice by a the national court disclosed no factor of such a kind as to affect the validity of Decision 97/803 (OJ 1997 L 329, p. 50), Case T-44/98 R II has become devoid of purpose. It should therefore be removed from the register.

29 The French Republic contends that the application for interim measures no longer has any foundation. In the Emesa Sugar judgment, the Court of Justice adjudicated on the legal issues of principle raised in the reference and rejected all the arguments put forward by the applicant as representing a prima facie case. The application for interim measures should therefore be dismissed.

Findings of the judge hearing the application for interim measures

30 First, the applicant's claim that the judge hearing the application for interim measures should not give a decision on release of the security given in the form of a bank guarantee until the Court of First Instance has given judgment in the main proceedings in Cases T-43/98 and T-44/98 must be rejected. It is not for the judge hearing an application for interim measures to call in question, as requested by the applicant, the findings of the Court of Justice, not amenable to appeal, set out in the order of 4 February 2000 and in the Emesa Sugar judgment.

31 With regard more specifically to the alleged manifest errors and factual inaccuracies contained in the Emesa Sugar judgment, it must be emphasised that one of the essential preconditions for the grant of an interim measure is that it must be established that the pleas in fact and in law set out in the application for interim measures constitute a prima facie case for the measure applied for, as provided in Article 104(2) of the Rules of Procedure of the Court of First Instance. The pleas and arguments set out by the applicant in its application for interim measures were referred to to a considerable extent by the national court in the questions on which it sought a preliminary ruling from the Court of Justice in Case C-17/98 and the latter reached the conclusion that consideration of the questions submitted had disclosed no factor of such a kind as to affect the validity of Decision 97/803, and it must therefore be concluded that the precondition concerning a prima facie case was not met. In particular, it must be observed that it is clear from the order of 30 April 1999 that the condition concerning a prima facie case had been regarded as satisfied on the basis of the arguments advanced in support of the allegation of breach of the principle of proportionality (paragraphs 103 to 113). On completing its examination of the proportionality of the measures laid down in Decision 97/803, the Court of Justice concluded in particular that the measure relating to imports of sugar covered by the ACP/OCT cumulation of origin rule contained in Article 108b(1) of the amended OCT Decision cannot be regarded as contrary to the principle of proportionality (paragraph 58 of the Emesa Sugar judgment).

32 The application for interim measures must be regarded as having no basis as from the date on which the Emesa Sugar judgment was delivered.

33 Second, it is necessary to draw certain inferences from that conclusion.

34 They concern, first, the request by the Commission and the Council that the applicant pay customs duties on the quantities of OCT-origin sugar imported into the Community under the interim measures.

35 The judge hearing the application for interim measures considers that that request, even if admissible, cannot be upheld.

36 In that connection, it must be borne in mind that, in the proceedings prior to the adoption of the order of 30 April 1999, the applicant, on the one hand, and the Council and the Commission, on the other, discussed the terms and conditions of such interim measures as might be prescribed in an order, so as to ensure that the order provided interim protection of the applicant's interests and protect the interests of the Community so far as possible, including the financial interests of the Community and those of the sugar refineries established in the Member States. Having regard to those opposing interests, those parties agreed before the judge hearing the application for interim measures that the applicant could, in the course of the period commencing on the date of signature of the order of 30 April 1999, import into the Community milled sugar of OCT-origin, within the meaning of Article 6 of Annex II to the OCT decision, in accordance with the conditions laid down by that decision as worded prior to the entry into force of Decision 97/803, subject to compliance with certain conditions and restrictions. Those conditions included the provision of a security in the form of a bank guarantee in the sum of USD 28 per tonne of sugar imported, without prejudice to the possibility of that amount being varied. The provision of the security was expressly mentioned in the fourth indent of paragraph 2 of the operative part of the orders of 30 April and 29 September 1999.

37 That sum of USD 28 per tonne, agreed between the applicant, the Commission and the Council, was calculated in such a manner that, after it was set against the profit resulting from the sale of each tonne of OCT-origin sugar, the applicant would be able to clear a balance of USD 31.30 per tonne, to be appropriated to paying off its creditors - the aggregate balance in respect of a volume of 15 000 tonnes corresponds to the amount of the debts payable (on this point, see paragraph 38 of the order of 29 September 1999).

38 It follows that the purpose of the security was to prevent the applicant from achieving a profit margin in excess of what was strictly necessary for progressive payment of its debts whilst at the same time limiting the financial loss which, in the event of Article 108b of the OCT decision ultimately not being declared invalid, the Community would have to bear by allowing the latter to receive, in default of the customs duties provided for by the rules, a certain sum per tonne of imported OCT-origin sugar.

39 Moreover, to accede to the request made by the Commission and the Council would be tantamount to disregarding the specific purpose of proceedings for interim relief, which is to preserve the situation of the party applying for the interim measure until delivery of the judgment bringing the main proceedings to an end or, as in this case, until expiry of the interim measures granted. Accordingly, in view of the nature of the interim measures granted in this case, it is not possible, without retroactively depriving them of any legal value, to ask, after they have ceased to be operative, that the action taken, in the context of such measures, should be made subject to the legal rules which would have been applicable if the conditions required for them to be granted had never been satisfied.

40 It follows that the quantities of OCT-origin sugar imported into the Community, in accordance with the conditions laid down in the operative part of the orders of 30 April and 29 September 1999, cannot be retroactively made subject to the customs duties provided for by the rules in force on the date when the imports were made, since a specific import regime, including the provision of a bank guarantee, was granted to the applicant with a view to preserving its situation temporarily.

41 Next, the inferences to be drawn from the lack of foundation of the application for interim measures concern release of the security.

42 In that connection, the operative part of the order of 29 September 1999 is entirely unambiguous in that it states that the total amount of the security provided shall be released, on order of the judge hearing the application for interim measures, for the benefit of the Community if the Court of Justice rules, during the period from 31 October 1999 to 29 February 2000, that Article 108b is not invalid in the judgment to be given in Case C-17/98 (fifth indent, paragraph 2). Since the Court of Justice has held that examination of the questions submitted disclosed no factor of such a kind as to affect the validity of Decision 97/803, it is appropriate to order that the security provided in the form of a bank guarantee should be released for the benefit of the Community.

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The application that proceedings on the present application for interim measures be stayed until delivery of the judgment bringing the main proceedings to an end (T-44/98) is dismissed.

2. The security furnished in accordance with the operative part of the orders of 30 April and 29 September 1999 (Case T-44/98 R II Emesa Sugar v Commission) is to be released for the benefit of the Community.

3 Costs are reserved.