CELEX: 61983CJ0114
Liability for refusal of a protective measure
Potato market

THE PARTIES PRESENTED ORAL ARGUMENT AT THE SITTING ON 15 MARCH 1984 .
THE ADVOCATE GENERAL DELIVERED HIS OPINION AT THE SITTING ON 12 APRIL 1984 .
DECISION
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 20 JUNE 1983 , SOCIETE D ' INITIATIVES ET DE COOPERATION AGRICOLES , KERISNEL , SAINT-POL-DE-LEON , AND SOCIETE INTERPROFESSIONNELLE DES PRODUCTEURS ET EXPEDITEURS DE FRUITS , LEGUMES , BULBES ET FLEURS D ' ILLE-ET-VILAINE , SAINT-MELOIR-DES-ONDES , BROUGHT AN ACTION FOR DAMAGES UNDER ARTICLE 215 OF THE EEC TREATY .
2 THE APPLICANTS SEEK COMPENSATION FOR THE DAMAGE WHICH THEY CLAIM TO HAVE SUFFERED AS A RESULT OF THE FACT THAT THE COMMISSION REFRAINED , IN THEIR VIEW     WRONGLY , FROM ADOPTING THE NECESSARY MEASURES EITHER TO STOP IMPORTS OF GREEK NEW POTATOES ON TO THE GERMAN , UNITED KINGDOM AND FRENCH MARKETS OR TO OBLIGE THE GREEK GOVERNMENT TO SUSPEND THE AID GRANTED BY IT FOR THE EXPORT OF NEW POTATOES . THEY CONSIDER THAT THE COMMISSION ' S INACTION CAUSED PRICES TO FALL ON THE ABOVEMENTIONED MARKETS BY REASON OF THE LARGE QUANTITIES OF GREEK NEW POTATOES WHICH WERE IMPORTED ON TO THOSE MARKETS AND THEREFORE CAUSED SERIOUS DAMAGE TO THE APPLICANTS WHO WERE NO LONGER ABLE TO SELL FRENCH POTATOES ON THOSE MARKETS AND WERE OBLIGED TO DESTROY THEM .
3 THE COMMISSION HAS OBJECTED THAT THE APPLICATION IS INADMISSIBLE ON THE GROUND THAT THE APPLICANTS ARE IN FACT SEEKING TO ENFORCE A COLLECTIVE RIGHT TO COMPENSATION FOR DAMAGE TO THE PERSONAL FINANCIAL INTERESTS OF THE GROWERS MAKING UP THEIR MEMBERSHIP , WHEREAS ACCORDING TO THE CASE-LAW OF THE COURT NO SUCH RIGHT EXISTS ( JUDGMENT OF 18 . 3 . 1975 IN CASE 72/74 , UNION SYNDICALE V COUNCIL , ( 1975 ) ECR 401 ).
4 IT IS NOT , HOWEVER , APPARENT FROM THE APPLICANT ' S CONCLUSIONS THAT THEY PURPORT TO ACT IN THE CAPACITY OF GROWERS NOR IS IT POSSIBLE TO INFER THAT CAPACITY FROM THE INSTRUMENTS CONSTITUTING AND REGULATING THEM , WHICH WERE PRODUCED TO THE COURT . MOREOVER , AT THE HEARING , THEY STATED THAT THEY WERE GROWERS '  ASSOCIATIONS WHICH RECEIVED , AND BECAME THE OWNERS OF , PRODUCE CONTRIBUTED BY THE GROWERS AND SOLD THAT PRODUCE ON THE WHOLESALE MARKETS .
5 IN THOSE CIRCUMSTANCES , IT CANNOT BE DENIED THAT THE APPLICANTS ARE ENTITLED TO BRING AN ACTION FOR DAMAGES , IN SO FAR AS THE ACTION IS BASED ON THE LOSS SUFFERED BY THEM IN THEIR CAPACITY OF DEALERS IN NEW POTATOES .
6 THE SUBMISSIONS PUT FORWARD BY THE APPLICANTS IN SUPPORT OF THEIR APPLICATION RELATE IN THE FIRST PLACE TO THE ALLEGATION THAT THE COMMISSION INFRINGED COMMUNITY LAW BY FAILING , DESPITE MASSIVE IMPORTS OF GREEK NEW POTATOES BENEFITING FROM STATE EXPORT AID , TO ADOPT MEASURES TO NEUTRALIZE THE ADVERSE CONSEQUENCES OF THAT SITUATION .
7 THE MEASURES WHICH , ACCORDING TO THE APPLICANTS , THE COMMISSION SHOULD HAVE ADOPTED INCLUDE , IN THE FIRST PLACE , A PROTECTIVE MEASURE WITHIN THE MEANING OF ARTICLE 130 ( 2 ) OF THE ACT OF ACCESSION OF THE HELLENIC REPUBLIC     TO THE EUROPEAN ECONOMIC COMMUNITY . THE THIRD SUBPARAGRAPH OF THAT ARTICLE PROVIDES AS FOLLOWS :
' ' IN THE AGRICULTURAL SECTOR , WHERE TRADE BETWEEN THE COMMUNITY AS AT PRESENT CONSTITUTED AND GREECE CAUSES OR THREATENS TO CAUSE SERIOUS DISTURBANCES ON THE MARKET OF A MEMBER STATE , THE COMMISSION SHALL ACT UPON A REQUEST BY A MEMBER STATE FOR THE APPLICATION OF APPROPRIATE MEASURES WITHIN 24 HOURS OF RECEIVING SUCH REQUEST . THE MEASURES THUS DECIDED ON SHALL BE APPLICABLE FORTHWITH AND SHALL TAKE ACCOUNT OF THE INTERESTS OF ALL PARTIES CONCERNED AND , IN PARTICULAR , TRANSPORT PROBLEMS . ' '
8 ALTHOUGH THE APPLICANTS MAINTAIN THAT THE CONDITIONS MENTIONED IN ARTICLE 130 ( 2 ) EXISTED ON THREE NATIONAL MARKETS , NAMELY THOSE OF GERMANY , FRANCE AND THE UNITED KINGDOM , IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT ONLY TWO STATES , NAMELY FRANCE AND THE UNITED KINGDOM , REQUESTED AUTHORIZATION , ON 9 JUNE AND 20 JUNE 1983 RESPECTIVELY , TO ADOPT PROTECTIVE MEASURES .
9 THE APPLICATION MADE BY THE FRENCH GOVERNMENT WAS NOT BASED ON SERIOUS DISTURBANCES ARISING FROM THE IMPORTATION OF GREEK POTATOES INTO FRANCE BUT ON MASSIVE SALES OF GREEK POTATOES IN OTHER COUNTRIES , IN PARTICULAR THE UNITED KINGDOM MARKET . THOSE SALES ARE SAID TO HAVE KEPT FRENCH POTATOES OUT OF THAT MARKET AND THEREBY BURDENED THE FRENCH MARKET WITH POTATOES WHICH COULD NOT BE DISPOSED OF IN THE UNITED KINGDOM .
10 IT THUS APPEARS THAT THE RISK OF DISTURBING THE FRENCH MARKET CANNOT BE ISOLATED FROM THE RISK AFFECTING THE UNITED KINGDOM MARKET , WHICH GAVE RISE TO A REDUCTION IN OUTLETS FOR FRENCH POTATOES . IT IS NECESSARY THEREFORE TO CONSIDER THE PROBLEM OF THE POSSIBLE APPLICATION OF PROTECTIVE MEASURES PRINCIPALLY IN RELATION TO THE SITUATION ON THE UNITED KINGDOM MARKET .
11 IN THAT CONNECTION , THE COMMISSION DID NOT CONSIDER THAT , EITHER BY REASON OF THEIR QUANTITY OR THEIR PRICE-LEVEL , THE POTATOES FROM GREECE DISTURBED OR WERE LIKELY TO DISTURB THE UNITED KINGDOM MARKET SERIOUSLY . AT THE HEARING , IT CONTENDED THAT THE TRUE REASONS FOR THE FALL IN PRICES ON THE UNITED KINGDOM MARKET WERE THE EXISTENCE OF VERY LARGE STOCKS OF WARE POTATOES     AND THE FACT THAT SUPPLIES WERE SIMULTANEOUSLY AVAILABLE FROM VARIOUS SOURCES FOR A VERY SHORT PERIOD . IT IS NECESSARY THEREFORE TO ESTABLISH WHETHER , ON THE BASIS OF THE INFORMATION IN ITS POSSESSION ON 20 JUNE 1983 , THE COMMISSION WAS JUSTIFIED IN NOT ADOPTING THE MEASURES IN QUESTION .
12 IT MUST IN THE FIRST PLACE BE POINTED OUT THAT SINCE A VERY LARGE QUANTITY OF WARE POTATOES WAS PRODUCED IN THE AUTUMN OF 1982 , LARGE STOCKS OF WARE POTATOES EXISTED AT THE BEGINNING OF THE MARKETING SEASON FOR NEW POTATOES , AS IS PROVED BY THE FACT THAT , ACCORDING TO THE STATISTICS FROM THE UNITED KINGDOM MINISTRY OF AGRICULTURE PRODUCED BY THE COMMISSION , THE REMAINING STOCKS OF WARE POTATOES STILL AMOUNTED TO 60 000 TONNES ON 22 JUNE 1983 , WHEREAS ON 22 JUNE 1982 THEY HAD AMOUNTED TO ONLY 30 000 TONNES .
13 THE EXISTENCE OF LARGE STOCKS OF WARE POTATOES , WHOSE PRICE IS NORMALLY ONE-THIRD OF THAT OF NEW POTATOES , MUST INEVITABLY EXERT CONSIDERABLE INFLUENCE ON THE PRICES OF NEW POTATOES . IN FACT , IT IS APPARENT FROM THE ABOVEMENTIONED STATISTICS THAT AS EARLY AS THE START OF THE 1983 MARKETING YEAR , THAT IS TO SAY WELL BEFORE THE ARRIVAL OF THE GREEK POTATOES ON THE MARKET , THE PRICES OF NEW POTATOES WERE LOWER THAN THE PRICES AT THE START OF THE 1982 SEASON . MOREOVER , THERE IS A FALL OF PRICES EACH YEAR ON THE UNITED KINGDOM MARKET IN JUNE AS A WHOLLY NORMAL CONSEQUENCE OF THE SIMULTANEOUS AVAILABILITY DURING THAT PERIOD OF SUPPLIES ORIGINATING FROM VARIOUS PLACES ( CYPRUS , GREECE , SPAIN , FRANCE , JERSEY AND TURKEY ).
14 IN ITS DECISION OF 1 JULY 1983 DISMISSING THE REQUEST FOR THE APPLICATION OF PROTECTIVE MEASURES MADE BY THE UNITED KINGDOM GOVERNMENT , THE COMMISSION CONSIDERED IN THE FIRST PLACE THAT :
' ' THE UNITED KINGDOM ' S MARKET IN EARLY POTATOES IS TRADITIONALLY SUPPLIED BY WAY OF IMPORTS FROM THIRD COUNTRIES INCLUDING CYPRUS , EGYPT AND SPAIN ; . . . DURING THE CURRENT MARKETING YEAR IMPORTS FROM GREECE ARE EXPECTED TO ACCOUNT FOR ONLY ABOUT 10% OF ALL IMPORTS . ' '
WHILST RECOGNIZING THAT THE PRICE OF THE GREEK PRODUCTS WAS BELOW THAT OF COMPETING PRODUCTS , IT WENT ON TO SAY THAT :
' ' THAT DIFFERENCE , WHICH IS DUE TO THE CHARACTERISTICS OF THE PRODUCTS WITH REGARD TO VARIETY AND QUALITY , HAS HAD LITTLE INFLUENCE ON THE PRICES OF SUCH PRODUCTS IN THE UNITED KINGDOM OR ON THOSE OF THE MAIN SUPPLIER THIRD COUNTRIES SINCE LEVELS HAVE REMAINED STABLE DURING THE LAST 10 DAYS ; . . . IN     PARTICULAR THE PRICES OF THE BRITISH PRODUCTS ARE WELL ABOVE THOSE RECORDED DURING THE SAME PERIOD DURING THE 1981 MARKETING YEAR , A MARKETING YEAR COMPARABLE WITH THE CURRENT ONE . ' '
15 THOSE ASSESSMENTS ARE BASED ON FINDINGS OF FACT WHICH ARE CORRECT . IT IS APPARENT FROM THE POTATO MARKETING BOARD STATISTICS THAT GREEK IMPORTS INTO THE UNITED KINGDOM BETWEEN 1 JUNE AND 11 JUNE 1983 ACCOUNTED FOR 220 TONNES OUT OF A TOTAL OF 34 675 TONNES SOLD ON THE UNITED KINGDOM MARKET AND , BETWEEN 11 AND 17 JUNE , FOR 3 754 TONNES OUT OF A TOTAL OF 35 302 TONNES . IT WAS ONLY IN THE WEEK FROM 18 TO 24 JUNE THAT THEY REACHED THE LEVEL OF 10 402 TONNES OUT OF A TOTAL OF 42 516 TONNES .
16 IN THE LIGHT OF THOSE FIGURES , THE COMMISSION WAS JUSTIFIED IN CONCLUDING THAT , EVEN IF THEIR PRICE WAS BELOW THAT OF COMPETING PRODUCTS , THE GREEK POTATOES , BY REASON OF THEIR SMALL QUANTITIES , COULD NOT HAVE GIVEN RISE TO A GENERAL DOWNWARD MOVEMENT DURING THE PERIOD PRECEDING THE REQUEST FOR PROTECTIVE MEASURES . NOR IS THERE ANY BASIS FOR TAKING THE VIEW , AS THE APPLICANTS DO , THAT THE ANNOUNCEMENT THAT LARGE QUANTITIES OF GREEK POTATOES WERE EXPECTED TO ARRIVE AFTER 17 JUNE 1983 COULD HAVE UPSET PRICES AS FROM 7 JUNE 1983 .
17 THE QUESTION NOW TO BE CONSIDERED IS WHETHER IT WAS REASONABLE FOR THE COMMISSION TO TAKE THE VIEW THAT THE CONSIDERABLE QUANTITIES OF GREEK POTATOES TO BE IMPORTED AFTER 20 JUNE 1983 WOULD NOT SERIOUSLY DISTURB THE UNITED KINGDOM MARKET .
18 IT MUST BE STATED IN THAT CONNECTION THAT , ON THE BASIS OF THE EXPERIENCE ACQUIRED IN THE PRECEDING YEARS , THE COMMISSION WAS ABLE TO FORESEE THAT , EVEN IF ABOUT 30 000 TONNES OF GREEK POTATOES HAD NOT BEEN IMPORTED , THE MARKET DEMAND , WHICH IN 1981 AND 1982 HAD STABILIZED AT ABOUT 90 000 TONNES IN JUNE , WOULD HAVE LED TO THEIR PLACE BEING TAKEN BY POTATOES FROM ELSEWHERE AND THE MARKET SITUATION WOULD NOT THEREBY HAVE BEEN SIGNIFICANTLY AFFECTED .
19 MOREOVER , IT WAS REASONABLE FOR THE COMMISSION TO TAKE ACCOUNT OF THE FACT THAT IN 1981 , WHEN THE MARKET PRICES WERE EVEN LOWER , THE UNITED KINGDOM GOVERNMENT DID NOT CONSIDER THAT THERE WAS SERIOUS DISTURBANCE OF THE UNITED KINGDOM MARKET .
20 IN VIEW OF THOSE CIRCUMSTANCES , IT MUST BE CONCLUDED THAT THE COMMISSION WAS JUSTIFIED IN CONSIDERING THAT THE FORESEEABLE FALL IN PRICES WOULD NOT BE DUE TO ' ' TRADE BETWEEN THE COMMUNITY AS AT PRESENT CONSTITUTED AND GREECE ' ' , IN THE WORDS OF THE THIRD SUBPARAGRAPH OF ARTICLE 130 ( 2 ) OF THE ACT OF ACCESSION , AND THAT BY REFUSING TO AUTHORIZE THE APPLICATION OF A PROTECTIVE MEASURE IT DID NOT EXCEED THE LIMITS OF THE MARGIN OF DISCRETION ACCORDED TO IT FOR THE ASSESSMENT OF ECONOMIC DATA .
21 THE APPLICANTS ALSO CLAIM THAT THE EXPORTS OF GREEK POTATOES WERE THE SUBJECT OF CONCERTED PRACTICES BETWEEN GREEK PRODUCERS AND EXPORTERS CONSTITUTING AN INFRINGEMENT OF ARTICLE 85 OF THE EEC TREATY AND THAT THE COMMISSION SHOULD HAVE DETERMINED , EVEN ON ITS OWN INITIATIVE , PURSUANT TO ARTICLE 3 OF COUNCIL REGULATION NO 17/62 , THAT AN INFRINGEMENT HAD TAKEN PLACE AND SHOULD HAVE COMPELLED THE UNDERTAKINGS CONCERNED TO TERMINATE THAT INFRINGEMENT , AFTER ESTABLISHING THAT THEY WERE NOT ENTITLED TO BENEFIT FROM THE CONDITIONS LAID DOWN IN COUNCIL REGULATION NO 26/62 .
22 IN THEIR CORRESPONDENCE WITH THE COMMISSION , HOWEVER , THE APPLICANTS NEVER SUPPORTED THEIR ASSERTIONS THAT THE COMPETITION RULES HAD BEEN INFRINGED BY REFERRING TO ANY MATTERS OF FACT OR OF LAW SHOWING THE EXISTENCE OF AGREEMENTS INCOMPATIBLE WITH ARTICLE 85 OF THE EEC TREATY . THE ARGUMENTS PUT FORWARD AND THE DOCUMENTS PRODUCED BY THE APPLICANTS IN CONNECTION WITH THIS APPLICATION CANNOT IN ANY EVENT BE TAKEN INTO CONSIDERATION IN ASSESSING THE CONDUCT OF THE COMMISSION , WHICH MUST BE JUDGED SOLELY ON THE BASIS OF THE INFORMATION WHICH WAS AVAILABLE TO IT .
23 THE COMMISSION ALSO STATED AT THE HEARING THAT IT DID NOT REMAIN INACTIVE WHEN THE APPLICANTS ASSERTED THAT AGREEMENTS EXISTED WHICH WERE CONTRARY TO THE COMPETITION RULES OF THE TREATY BUT IN FACT SENT AN INSPECTOR TO GREECE WHO , HOWEVER , FOUND NO TRACE OF THE EXISTENCE OF ANY AGREEMENTS BETWEEN UNDERTAKINGS DEALING IN NEW POTATOES .
24 IN THOSE CIRCUMSTANCES , THE COMMISSION CANNOT BE CRITICIZED FOR FAILING TO ADOPT ANY DECISION UNDER ARTICLE 3 OF REGULATION NO 17/62 .
25 NOR IS IT PERTINENT TO REFER TO ARTICLE 131 OF THE ACT OF ACCESSION , UNDER WHICH THE COMMISSION HAS THE POWER , ' ' BEFORE THE EXPIRY OF THE PERIOD OF APPLICATION OF THE TRANSITIONAL MEASURES LAID DOWN UNDER THIS ACT FOR EACH CASE ' ' , TO ADDRESS RECOMMENDATIONS , UPON APPLICATION BY A MEMBER STATE OR ANY OTHER INTERESTED PARTY , TO THE PERSON OR PERSONS RESPONSIBLE FOR DUMPING FOR THE PURPOSE OF PUTTING AN END TO THAT PRACTICE . SINCE NO TRANSITIONAL MEASURE WAS LAID DOWN FOR NEW POTATOES , IT MUST BE CONSIDERED THAT THE NORMAL RULES OF THE TREATY ARE TO APPLY TO THAT PRODUCT .
26 ACCORDING TO THE APPLICANTS , THE COMMISSION COULD ALSO HAVE DECIDED UNDER ARTICLE 93 ( 2 ) OF THE EEC TREATY THAT GREECE WAS TO ABOLISH THE AID FOR THE EXPORT OF POTATOES .
27 THERE IS NO NEED TO GIVE ANY DECISION AS TO THE ACTUAL EXISTENCE OF SUCH AID , IT BEING SUFFICIENT TO POINT OUT WITH REGARD TO THAT ARGUMENT THAT UNDER ARTICLE 42 OF THE EEC TREATY ' ' THE PROVISIONS OF THE CHAPTER RELATING TO RULES ON COMPETITION SHALL APPLY TO PRODUCTION OF AND TRADE IN AGRICULTURAL PRODUCTS ONLY TO THE EXTENT DETERMINED BY THE COUNCIL ' '  AND THAT ARTICLE 4 OF COUNCIL REGULATION NO 26/62 , WHICH DECLARES ARTICLE 93 ( 1 ) AND ( 3 ) TO BE APPLICABLE TO AGRICULTURAL PRODUCTS , DOES NOT DECLARE APPLICABLE ARTICLE 92 , WHICH PROHIBITS STATE AID , OR ARTICLE 93 ( 2 ), WHICH CONFERS UPON THE COMMISSION POWER TO DECIDE THAT A MEMBER STATE MUST ABOLISH OR ALTER SUCH AID . SINCE POTATOES ARE NOT SUBJECT TO A COMMON ORGANIZATION OF THE MARKET , THE PROVISIONS OF ARTICLE 4 , MENTIONED ABOVE , ARE SO FAR THE ONLY PROVISIONS APPLICABLE TO THEM .
28 ACCORDING TO THE APPLICANTS , ARTICLE 46 OF THE EEC TREATY CONFERS UPON THE COMMISSION A POWER OF DECISION OF ITS OWN , IN PARTICULAR POWER TO IMPOSE A COUNTERVAILING CHARGE ON IMPORTS , SO AS TO REDRESS THE BALANCE OF COMPETITION WHICH IS JEOPARDIZED BY ' ' A NATIONAL MARKET ORGANIZATION OR . . . INTERNAL RULES HAVING EQUIVALENT EFFECT WHICH AFFECT THE COMPETITIVE POSITION OF SIMILAR PRODUCTION IN ANOTHER MEMBER STATE ' ' .
29 IN VIEW OF THE FOREGOING CONSIDERATIONS , IN PARTICULAR THOSE RELATING TO THE CONDITIONS NECESSARY FOR THE ADOPTION OF PROTECTIVE MEASURES UNDER THE ACT OF ACCESSION OF THE HELLENIC REPUBLIC , IT MUST BE HELD THAT THE BALANCE OF COMPETITION , WITHIN THE MEANING OF ARTICLE 46 OF THE EEC TREATY , DOES NOT APPEAR TO BE SO JEOPARDIZED AS TO JUSTIFY THE INTRODUCTION OF COUNTERVAILING CHARGES UNDER THAT PROVISION .
30 IT MUST THEREFORE BE CONCLUDED THAT THE COMMISSION WAS NOT UNDER ANY OBLIGATION TO ADOPT ANY OF THE VARIOUS MEASURES WHICH THE APPLICANTS CLAIM THAT IT SHOULD HAVE ADOPTED .
31 THE APPLICATION MUST THEREFORE BE DISMISSED .
Decision on costs
COSTS
32 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS , IF THEY ARE ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADINGS . SINCE THE APPLICANTS HAVE BEEN UNSUCCESSFUL IN THEIR SUBMISSIONS , THEY MUST BE ORDERED TO PAY THE COSTS , INCLUDING THOSE OF THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES .
Operative part
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE APPLICANTS TO PAY THE COSTS , INCLUDING THOSE OF THE PROCEEDINGS RELATING TO THE APPLICATION FOR INTERIM MEASURES .