# C_2006074EN.01002402.xml

| 25.3.2006 | EN | Official Journal of the European Union | C 74/24 |
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25.3.2006

EN

Official Journal of the European Union

C 74/24

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Action brought on 22 December 2005 — Plantations de Mbanga v Commission

(Case T-447/05)

(2006/C 74/47)

Language of the case: French

Parties

Applicant: Société des plantations de Mbanga (SPM) SA, established in Douala, Cameroon, represented by: P. Soler Couteaux and S. Cahn, lawyers

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Regulation (EC) No 2015/2005 of 9 December 2005 on imports during January and February 2006 of bananas originating in ACP countries under the tariff quota opened by Council Regulation (EC) No 1964/2005 on the tariff rates for bananas; |
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annul Commission Regulation (EC) No 2015/2005 of 9 December 2005 on imports during January and February 2006 of bananas originating in ACP countries under the tariff quota opened by Council Regulation (EC) No 1964/2005 on the tariff rates for bananas;

| — | order the Commission and the Council to pay all the costs and expenses. |
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order the Commission and the Council to pay all the costs and expenses.

Pleas in law and main arguments

In the context of the amendments to the specific regime for trade quotas with non-Member States forming part of the measures of market organisation in the banana sector, Council Regulation No 1964/2005 of 29 November 2005 (1), among other things, conferred on the Commission the power to enact the measures necessary to implement that regulation, as well as transitional measures relating to the management of the tariff quota for bananas originating in ACP countries. In that context, the Commission maintained in its Regulation No 2015/2005 of 9 December 2005 (2), for the months of January and February 2006, the previous system of granting import licences on the basis of historic references (3), as it was initially laid down by Regulation No 896/2001. The annulment of Regulation No 2015/2005 is sought in this action.

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In support of its action, the applicant claims that by establishing, in its Articles 3 and 4, a system of allocation of import licences based on historic references and on the introduction of non-traditional operators, Regulation No 2015/2005 infringes:

| — | the contractual framework of the banana market; |
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the contractual framework of the banana market;

| — | the philosophy and principles enshrined in the Community provisions in respect of common agricultural policy and common organisation of the banana markets and the provisions themselves of the Community legislation in question; |
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the philosophy and principles enshrined in the Community provisions in respect of common agricultural policy and common organisation of the banana markets and the provisions themselves of the Community legislation in question;

| — | the principles enshrined in Articles 81 EC and 82 EC, in that it enables historic operators to abuse collectively the dominant position which, according to the applicant, is conferred on them by the regulatory provisions and in that it also encourages other anti-competitive practices on the Community banana market; |
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the principles enshrined in Articles 81 EC and 82 EC, in that it enables historic operators to abuse collectively the dominant position which, according to the applicant, is conferred on them by the regulatory provisions and in that it also encourages other anti-competitive practices on the Community banana market;

| — | the principles enshrined in Article 87 EC, in that its effect is to confer a substantial financial advantage selectively on certain historically important traditional importers, who are able to profit from the resale of licences wrongly obtained gratuitously; |
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the principles enshrined in Article 87 EC, in that its effect is to confer a substantial financial advantage selectively on certain historically important traditional importers, who are able to profit from the resale of licences wrongly obtained gratuitously;

| — | the principle of proportionality in that it does not permit the creation and development of the businesses of credible and viable non-traditional importers, who can survive only by relying on a traditional importer; in addition, the applicant claims that the regulation, annulment of which is sought, no longer enables ACP banana producers to take advantage in an equitable manner of the preference accorded to ACP bananas, since the system benefits excessively certain historically important traditional importers; |
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the principle of proportionality in that it does not permit the creation and development of the businesses of credible and viable non-traditional importers, who can survive only by relying on a traditional importer; in addition, the applicant claims that the regulation, annulment of which is sought, no longer enables ACP banana producers to take advantage in an equitable manner of the preference accorded to ACP bananas, since the system benefits excessively certain historically important traditional importers;

| — | the principle of non-discrimination in that it applies apparently equitable treatment to all traditional ACP importers, whilst in reality, it favours unduly certain historically important traditional importers. |
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the principle of non-discrimination in that it applies apparently equitable treatment to all traditional ACP importers, whilst in reality, it favours unduly certain historically important traditional importers.

Finally, the applicant also relies, in support of its claims, on breach of the principles of legitimate expectations and of the freedom to carry on business.

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(1)  Regulation (EC) No 1964/2005 of 29 November 2005 on the tariff rates for bananas (OJ L 316 of 2.12.05).

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(2)  Commission Regulation (EC) No 2015/2005 of 9 December 2005 on imports during January and February 2006 of bananas originating in ACP countries under the tariff quota opened by Council Regulation (EC) No 1964/2005 on the tariff rates for bananas (OJ L 324, p. 5).

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(3)  Which is challenged by the applicant in Case T-128/05 pending before the Court of First Instance.

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