61984CO0001_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 1/84 R
ILFORD SPA, WHOSE REGISTERED OFFICE IS IN ORRIGIO ( ITALY ), REPRESENTED BY ANGELO PESCE, OF THE MILAN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34 B RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, 200 RUE DE LA LOI, B-1049 BRUSSELS, REPRESENTED BY EUGENIO DE MARCH, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION PURSUANT TO ARTICLE 185 OF THE EEC TREATY FOR THE ADOPTION OF INTERIM MEASURES OR FOR SUSPENSION OF THE OPERATION OF THE COMMISSION
DECISION OF 20 OCTOBER 1983 AUTHORIZING THE ITALIAN REPUBLIC NOT TO APPLY COMMUNITY TREATMENT TO FILMS FOR COLOUR PHOTOGRAPHS ORIGINATING IN JAPAN,
Grounds
1 THE APPLICANT IS AN ITALIAN PRODUCER OF BLACK AND WHITE PHOTOGRAPHIC FILMS . ACCORDING TO ITS SUBMISSIONS THE ILFORD GROUP, OF WHICH IT IS A MEMBER, CONCLUDED AN AGREEMENT WITH A JAPANESE PRODUCER IN THE MIDDLE OF 1982, WITH A VIEW TO MARKETING COLOUR FILMS, WHICH THAT GROUP DOES NOT PRODUCE, IN THE COMMUNITY AND IN PARTICULAR IN ITALY . AS A RESULT THE APPLICANT IMPORTED THE PRODUCTS REFERRED TO IN THE CONTESTED DECISION INTO ITALY FROM OTHER MEMBER STATES WHERE THEY WERE IN FREE CIRCULATION . THAT POSSIBILITY WAS
ENDED BY THE CONTESTED DECISION AS FROM 5 OCTOBER 1983, WHILE THE ITALIAN GOVERNMENT HAS SINCE 30 SEPTEMBER 1983 PREVENTED DIRECT IMPORTATION OF THOSE PRODUCTS .
2 IN ITS MAIN APPLICATION CONTESTING THAT DECISION THE APPLICANT ' S ARGUMENT IS ESSENTIALLY TO THE EFFECT, ON THE ONE HAND, THAT THE DECISION IS CONTRARY TO ARTICLE 115 OF THE EEC TREATY BECAUSE THE CONDITIONS OF FACT AND OF LAW TO WHICH THE IMPLEMENTATION OF THE PROTECTIVE MEASURES PROVIDED FOR BY THAT ARTICLE ARE SUBJECT ARE NOT PRESENT IN THIS CASE, AND, ON THE OTHER HAND, THAT IT IS MADE RETROACTIVE TO 5 OCTOBER, WHEREAS NO JUSTIFICATION IS PROVIDED OR EXISTS REGARDING THE NEED FOR THAT RETROACTIVE EFFECT .
3 IN SUPPORT OF ITS APPLICATION FOR SUSPENSION OR FOR INTERIM MEASURES THE APPLICANT ARGUES THAT, TAKING INTO ACCOUNT THE ILLEGALITIES WITH WHICH THE CONTESTED DECISION IS TAINTED, ITS SUSPENSION OR SUCH OTHER MEASURES AS THE COURT MAY CONSIDER APPROPRIATE ARE URGENTLY REQUIRED, PENDING THE COURT ' S JUDGMENT IN THE MAIN PROCEEDINGS, IN ORDER TO AVOID ENDANGERING THE APPLICANT ' S ACTIVITY . THE APPLICANT NOTES IN THIS RESPECT THAT THE CONTESTED DECISION MEANS A COMPLETE HALT IN ITS SUPPLY OF COLOUR PHOTO PRODUCTS ( WHICH IT MARKETS UNDER ITS NAME ) AND THAT ITS STOCK OF THE PRODUCTS IN QUESTION IS SUFFICIENT TO COVER ITS NEEDS ONLY FOR 60 TO 70 DAYS .
4 THE COMMISSION SUBMITS THAT THE APPLICATION FOR SUSPENSION OR FOR OTHER INTERIM MEASURES, WHICH IT CONSIDERS TO BE BOTH INADMISSIBLE AND UNFOUNDED, SHOULD BE DISMISSED .
ADMISSIBILITY
5 ACCORDING TO THE COMMISSION THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS, LIKE THE MAIN APPLICATION, INADMISSIBLE ON THE GROUND THAT THE CONTESTED MEASURE, ADDRESSED EXCLUSIVELY TO THE ITALIAN REPUBLIC, IS NOT OF DIRECT OR INDIVIDUAL CONCERN TO THE APPLICANT . IT EMPHASIZES THAT ACCORDING TO THE CASE-LAW OF THE COURT THE FACT THAT THE APPLICANT IS AN IMPORTER OF THE PRODUCT IN QUESTION IS NOT SUFFICIENT TO DISTINGUISH IT INDIVIDUALLY AS REQUIRED BY ARTICLE 173 OF THE TREATY .
6 IN THE COURSE OF THE ORAL PROCEDURE IT WAS REVEALED THAT THE APPLICANT HAD DULY SUBMITTED APPLICATIONS FOR IMPORT PERMITS ON 13 OCTOBER 1983, THAT IS, BEFORE THE DATE ON WHICH THE CONTESTED DECISION WAS ADOPTED ( 20 OCTOBER 1983 ) BUT AFTER THE DATE ON WHICH IT TOOK EFFECT ( 9 OCTOBER 1983 ). AS THE COURT POINTED OUT IN ITS JUDGMENT OF 23 NOVEMBER 1981 ( CASE 62/70, BOCK V COMMISSION, ( 1971 ) ECR 897 ), THAT FACT IS SUFFICIENT TO DIFFERENTIATE IMPORTERS IN SUCH A SITUATION FROM OTHERS AND TO DISTINGUISH THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .
7 WITHOUT PREJUDICE TO THE COURT ' S DECISION CONCERNING THE ADMISSIBILITY OF THE MAIN APPLICATION, THESE FINDINGS ARE SUFFICIENT FOR A CONCLUSION THAT THE APPLICATION FOR SUSPENSION OR FOR INTERIM MEASURES IS ADMISSIBLE .
SUBSTANCE
8 IT IS NOT DISPUTED THAT IN ANY EVENT UNTIL 30 SEPTEMBER 1983 ( AND ACCORDING TO THE COMMISSION AFTER THAT DATE ALSO ) THE DIRECT IMPORT INTO ITALY FROM JAPAN OF THE PRODUCTS CONCERNED WAS SUBJECT TO RESTRICTIONS . MOST RECENTLY A MINISTERIAL DECREE OF 7 JANUARY 1983, ( OFFICIAL JOURNAL OF THE ITALIAN REPUBLIC NO 13 OF 14 . 1 . 1983, P . 334 ) OPENED A QUOTA FOR THOSE PRODUCTS IN THE AMOUNT OF USD 265 000 FOR THE PERIOD FROM 1 OCTOBER 1982 TO 30 SEPTEMBER 1983 . THAT MINISTERIAL DECREE, WHOSE EFFECT CAME TO AN END ON 30 SEPTEMBER 1983, WAS NOT RENEWED OR REPLACED FOR THE PERIOD SUBSEQUENT TO THAT DATE .
9 UNTIL 5 OCTOBER 1983, HOWEVER, THE SAME PRODUCTS COULD BE IMPORTED FREELY INTO ITALY IF THEY HAD FIRST BEEN PUT INTO FREE CIRCULATION IN ANOTHER MEMBER STATE . THE CONTESTED DECISION PUT AN END TO THAT POSSIBILITY AT THE REQUEST OF THE ITALIAN REPUBLIC, WHICH HAD PREVIOUSLY, BY COMMISSION DECISION NO 83/374 OF 19 JULY 1983 ( OFFICIAL JOURNAL, L 218 OF 9 . 8 . 1983, P . 14 ), OBTAINED AUTHORIZATION TO SUBMIT THOSE PRODUCTS TO THE SYSTEM KNOWN AS ' ' INTRA-COMMUNITY SURVEILLANCE ' ' .
10 UNDER ARTICLE 115 OF THE TREATY THE COMMISSION MAY AUTHORIZE MEMBER STATES TO TAKE NECESSARY PROTECTIVE MEASURES, THE CONDITIONS AND DETAILS OF WHICH ARE TO BE DETERMINED BY IT, IN ORDER TO ENSURE THAT THE EXECUTION OF COMMERCIAL MEASURES TAKEN BY A MEMBER STATE IN ACCORDANCE WITH THE
TREATY ARE NOT OBSTRUCTED BY DEFLECTION OF TRADE, OR WHERE DIFFERENCES BETWEEN SUCH MEASURES LEAD TO ECONOMIC DIFFICULTIES IN ONE OR MORE OF THE MEMBER STATES .
11 AT THIS STAGE IN THE PROCEEDINGS THE COMMISSION HAS NOT, EITHER IN THE STATEMENT OF THE REASONS ON WHICH THE DECISION IS BASED OR IN THE COURSE OF THESE INTERLOCUTORY PROCEEDINGS, SUCCEEDED IN SHOWING SATISFACTORILY THAT THE CONDITIONS FOR THE EXECUTION OF THE PROTECTIVE MEASURES REFERRED TO IN ARTICLE 115 ARE MET IN THIS CASE, AND IN PARTICULAR HAS NOT SHOWN THE EXISTENCE OF ANY ITALIAN DOMESTIC MEASURE OF COMMERCIAL POLICY TAKEN IN ACCORDANCE WITH THE TREATY .
12 ACCORDING TO THE APPLICANT, THE LIMITATION OF DIRECT IMPORTS INTO ITALY OF THE PRODUCTS IN QUESTION, OF JAPANESE ORIGIN, WHICH UNTIL 30 SEPTEMBER 1983 RESULTED FROM THE MINISTERIAL DECREE OF 7 JANUARY 1983 REFERRED TO ABOVE, CAME TO AN END ON THAT DATE SINCE THE DECREE WAS NOT RENEWED . THE APPLICANT CONCLUDES THAT FROM THEN ON THERE WAS NO LONGER ANY NATIONAL MEASURE LIMITING DIRECT IMPORTS . THIS POINT OF VIEW FINDS SOME SUPPORT IN THE FACT THAT THE COUNCIL FROM YEAR TO YEAR AUTHORIZED THE INDEPENDENT EXTENSION OF PROVISIONS OF CERTAIN TRADE AGREEMENTS AND PROTOCOLS CONCLUDED BY MEMBER STATES WITH NON-MEMBER COUNTRIES . IN PARTICULAR COUNCIL DECISION NO 82/591 OF 12 AUGUST 1982 ( OFFICIAL JOURNAL, L 244 OF 19 . 8 . 1982, P . 24 ) AUTHORIZED THE RENEWAL FROM 19 AUGUST 1982 UNTIL 30 SEPTEMBER 1983 OF ' ' AGREED MINUTES ' '
WHICH HAD BEEN THE SUBJECT OF BILATERAL NEGOTIATIONS BETWEEN ITALY AND JAPAN IN 1969 . IT SHOULD BE NOTED IN PARTICULAR THAT THE EXPIRY DATE OF THE MINISTERIAL DECREE OF 7 JANUARY 1983 COINCIDED EXACTLY WITH THE EXPIRY DATE OF THE EXTENSION AUTHORIZATION AND THAT IN SPITE OF THE NEW EXTENSION OF THE ' ' AGREED MINUTES ' '
PERMITTED BY THE COUNCIL IN ITS DECISION NO 83/401 OF 9 AUGUST 1983 ( OFFICIAL JOURNAL, L 233 OF 24 . 8 . 1983 ) NO NEW MINISTERIAL DECREE HAS BEEN ADOPTED SINCE THEN .
13 THE COMMISSION, FOR ITS PART, MAINTAINS THAT THE BASIS FOR THE PROHIBITION OF DIRECT IMPORTS IS A MORE GENERAL NATIONAL MEASURE, NAMELY THE MINISTERIAL DECREE OF 6 MAY 1976 ( OFFICIAL JOURNAL OF THE ITALIAN REPUBLIC, ORDINARY SUPPLEMENT OF 16 . 6 . 1976, NO 157 ), WHICH IMPOSED A COMPLETE PROHIBITION OF DIRECT IMPORTS WITHOUT MINISTERIAL AUTHORIZATION, SO THAT FROM 30 SEPTEMBER 1983, IN THE ABSENCE OF A MINISTERIAL DECREE OPENING A QUOTA, THE DIRECT IMPORTATION OF THE PRODUCTS IN QUESTION WAS COMPLETELY PROHIBITED .
14 THAT VIEW GIVES RISE TO SERIOUS DOUBTS IN SEVERAL RESPECTS . THE ASSERTION THAT THE MINISTERIAL DECREE OF 7 JANUARY 1983 WAS ADOPTED IN THE CONTEXT OF THE SYSTEM ESTABLISHED BY THE DECREE OF 6 MAY 1976 FINDS NO SUPPORT IN THE RECITALS IN THE PREAMBLE TO THE FORMER DECREE WHICH REFER TO SEVERAL LEGAL PROVISIONS WITHOUT MAKING ANY MENTION OF THE LATTER DECREE . MOREOVER THE COMMISSION ITSELF, IN THE RECITALS IN THE PREAMBLE TO THE DECISION CONTESTED IN THE MAIN PROCEEDINGS, STARTS FROM THE HYPOTHESIS THAT A QUOTA HAS BEEN ESTABLISHED BY THE ITALIAN AUTHORITIES, AND DOES NOT REFER TO ANY OTHER NATIONAL MEASURE .
15 AS A RESULT IT IS IMPOSSIBLE AT THIS STAGE OF THE PROCEEDINGS TO FIND WITH SUFFICIENT CERTAINTY THAT THERE IS A NATIONAL MEASURE IN THE SENSE REQUIRED BY ARTICLE 115 OF THE TREATY .
16 IT SHOULD BE ADDED THAT EVEN IF IT HAD TO BE ACCEPTED, AS THE COMMISSION SUGGESTS, THAT THE DECREE OF 6 MAY 1976 CONSTITUTES A NATIONAL MEASURE FOR THE PURPOSES OF ARTICLE 115 OF THE TREATY, IT IS DOUBTFUL WHETHER IT CAN BE A MEASURE EXECUTED IN ACCORDANCE WITH THE TREATY .
17 THE COMMISSION ITSELF ADMITS THAT THE PROHIBITION OF IMPORTS WHICH IT SAYS IS LAID DOWN BY THE DECREE OF 6 MAY 1976 CAN BE IN ACCORDANCE WITH THE TREATY ONLY TO THE EXTENT TO WHICH THE SYSTEM WHICH IT ESTABLISHES IS, IN ITS TURN, IN ACCORDANCE WITH REGULATION NO 288/82 OF 5 FEBRUARY 1982 ON COMMON RULES FOR IMPORTS ( OFFICIAL JOURNAL, L 35 OF 9 . 2 . 1982 ).
18 ARTICLE 20 OF THAT REGULATION EXPRESSLY REQUIRES THAT ANY MEMBER STATE WHICH INTENDS TO CHANGE A QUANTITATIVE RESTRICTION MUST INFORM ALL THE OTHER MEMBER STATES AND THE COMMISSION . THE COMMISSION HAS PROVIDED NO EVIDENCE WHICH WOULD ESTABLISH THAT THE TRANSFORMATION OF THE QUOTA GRANTED IN PARTICULAR FOR THE PERIOD 1 OCTOBER 1982 TO 30 SEPTEMBER 1983 INTO A TOTAL PROHIBITION OF DIRECT IMPORTS INTO ITALY AS FROM THE LATTER DATE WAS THE SUBJECT OF SUCH CONSULTATION . IT FOLLOWS THAT, ALSO IN THE CONTEXT OF REGULATION NO 288/82, IT IS NOT POSSIBLE TO FIND THAT AFTER 30 SEPTEMBER 1983 THERE WAS A NATIONAL MEASURE TAKEN IN ACCORDANCE WITH THE TREATY, WHEREAS THE APPLICATION OF ARTICLE 115 IS CONDITIONAL UPON THE EXISTENCE OF SUCH A MEASURE .
19 FINALLY, IT MUST BE POINTED OUT THAT THE DECISION CONTESTED IN THE MAIN PROCEEDINGS GIVES NO PARTICULARS CONCERNING THE FACT THAT IT IS MADE RETROACTIVE TO 5 OCTOBER 1983 . ALTHOUGH, ACCORDING TO THE CASE-LAW OF THE COURT, IT IS NOT IMPOSSIBLE FOR COMMUNITY DECISIONS TO HAVE RETROACTIVE EFFECT, DECISIONS HAVING SUCH EFFECT MUST INCLUDE IN THE STATEMENT OF THE REASONS ON WHICH THEY ARE BASED PARTICULARS WHICH JUSTIFY THE DESIRED RETROACTIVE EFFECT . THE DECISION IN QUESTION IS SILENT IN THIS REGARD .
20 IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT THE QUESTION OF THE CONFORMITY WITH ARTICLE 115 OF THE TREATY OF THE DECISION CONTESTED IN THE MAIN PROCEEDINGS RAISES SERIOUS PROBLEMS, SO THAT IN ANY EVENT THE FIRST CONDITION TO WHICH THE SUSPENSION OF ITS OPERATION OR THE GRANTING OF INTERIM MEASURES IS SUBJECT HAS BEEN MET .
21 WITH REGARD TO THE NECESSITY AND URGENCY OF A SUSPENSION OF THE DECISION, IN ORDER TO AVOID SERIOUS AND IRREPARABLE HARM TO THE APPLICANT, IT MUST BE ACCEPTED, TAKING INTO ACCOUNT THE EXPLANATIONS PROVIDED BY THE APPLICANT AND NOT CONTRADICTED BY THE COMMISSION, THAT A COMPLETE HALT IN SUPPLYING TO AN UNDERTAKING WHOSE STOCK IS SUFFICIENT FOR A PERIOD OF ABOUT 60 TO 70 DAYS MAY PLACE THAT UNDERTAKING IN AN EXTREMELY DIFFICULT SITUATION . THAT IS PARTICULARLY SO IF, AS THE APPLICANT ASSERTS, WITHOUT BEING CONTRADICTED BY THE COMMISSION, THE AGREEMENT CONCLUDED WITH ITS JAPANESE SUPPLIER OF COLOUR FILMS IN RETURN GAVE THE UNDERTAKINGS OF THE ILFORD GROUP, INCLUDING THE APPLICANT, THE POSSIBILITY OF MARKETING IN JAPAN BLACK AND WHITE FILMS WHICH THE APPLICANT PRODUCES .
22 IT IS HOWEVER NECESSARY TO TAKE INTO ACCOUNT THE FACT THAT THE SUPPLY AGREEMENT WITH THE JAPANESE SUPPLIER WAS CONCLUDED RELATIVELY RECENTLY, IN FULL KNOWLEDGE OF THE QUANTITATIVE RESTRICTIONS WHICH APPLIED TO DIRECT IMPORTS INTO ITALY OF THE PRODUCTS IN QUESTION . IN THOSE CIRCUMSTANCES THE POSSIBILITY OF RECOURSE BY THE COMMISSION TO ARTICLE 115 IN ORDER TO PREVENT DEFLECTION OF TRADE SHOULD HAVE BEEN CONSIDERED AMONG THE RISKS OF THE UNDERTAKING . THAT WAS PARTICULARLY SO SINCE THE COMMISSION, IN ITS DECISION OF 19 JULY 1983, HAD AUTHORIZED THE PLACING UNDER SURVEILLANCE OF THE PRODUCTS IN QUESTION .
23 IN THE LIGHT OF ALL THE CIRCUMSTANCES REFERRED TO ABOVE, THE OPERATION OF THE CONTESTED DECISION SHOULD BE SUSPENDED TO THE EXTENT SET OUT BELOW .
ON THOSE GROUNDS,
Operative part
THE PRESIDENT
BY WAY OF INTERIM DECISION
HEREBY ORDERS AS FOLLOWS :
1 . THE OPERATION OF THE COMMISSION ' S DECISION OF 20 OCTOBER 1983 AUTHORIZING THE ITALIAN REPUBLIC NOT TO APPLY COMMUNITY TREATMENT TO FILMS IN ROLLS, SENSITIZED, UNEXPOSED, PERFORATED OR NOT, FOR COLOUR PHOTOGRAPHS ( SUBHEADINGS 37.02 EX A II AND EX B IV OF THE COMMON CUSTOMS TARIFF ) ORIGINATING IN JAPAN AND IN FREE CIRCULATION IN THE OTHER MEMBER STATES ( OFFICIAL JOURNAL, C 285 OF 22 OCTOBER 1983, P . 6 ) SHALL BE SUSPENDED IN RESPECT OF THE APPLICATIONS FOR IMPORT PERMITS SUBMITTED BY ILFORD BETWEEN 5 AND 20 OCTOBER 1983, TO THE EXTENT NECESSARY IN ORDER TO ENSURE NORMAL SUPPLIES TO THE APPLICANT DURING THE PERIOD FROM 5 OCTOBER 1983 TO 31 MARCH 1984 . THOSE NEEDS SHALL BE ASSESSED IN CONSIDERATION OF THE STOCKS OF THE PRODUCTS IN QUESTION HELD BY ILFORD ON 5 OCTOBER 1983 AND OF ITS SALES FIGURES FOR THOSE PRODUCTS OVER THE PREVIOUS 12 MONTHS . THE COMMISSION AND ILFORD WILL COME TO AN AGREEMENT BEFORE 29 FEBRUARY 1984 ON THE NUMBER OF UNITS WHICH IT MUST THUS BE POSSIBLE TO IMPORT FOR RELEASE INTO FREE CIRCULATION . SHOULD THEY BE UNABLE TO AGREE THEY WILL INFORM THE PRESIDENT OF THE COURT, BY 1 MARCH 1984, OF THEIR RESPECTIVE PROPOSALS, GIVING THE REASONS FOR THEIR FAILURE TO AGREE .
2.THE COSTS ARE RESERVED .