61979CO0809_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 809/79 R
FRATELLI PARDINI S.P.A ., WHOSE REGISTERED OFFICE IS IN LUCCA ( ITALY ), REPRESENTED BY GIOVANNI MARIA UBERTAZZI AND FAUSTO CAPELLI, MILAN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF LOUIS SCHILTZ, 83, BOULEVARD GRANDE-DUCHESSE CHARLOTTE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, RICHARD WAINWRIGHT, ACTING AS AGENT, ASSISTED BY GUIDO BERARDIS, A MEMBER OF THE LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, LEGAL ADVISER TO THE COMMISSION, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ADOPTION OF INTERIM MEASURES,
Grounds
1 THE SUBSTANCE OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES UNDER ARTICLE 186 OF THE EEC TREATY IS A PROVISIONAL ORDER TO THE COMMISSION TO AUTHORIZE THE ITALIAN GOVERNMENT TO ISSUE A FRESH EXPORT LICENCE ' ' IDENTICAL ' '
TO THE STOLEN LICENCE CONFERRING ALL THE RIGHTS TO REFUNDS FLOWING FROM THE LATTER AND THAT THE VALIDITY SHOULD BE EXTENDED SUBJECT TO THE LODGING OF SECURITY IN THE FORM OF A BANK GUARANTEE .
2 THE APPLICATION REFERS TO A MAIN APPLICATION IN WHICH THE APPLICANT IN ESSENCE CLAIMS THAT THE COURT SHOULD :
1 . DECLARE THAT ARTICLE 17 ( 7 ) OF REGULATION ( EEC ) NO 193/75 IS INVALID AND THAT THE CONDUCT OF THE COMMISSION IS ILLEGAL INASMUCH AS IT OMITTED TO ADOPT A MEASURE ENABLING PARDINI TO BE AUTHORIZED TO EXPORT THE QUANTITIES OF MEAL REFERRED TO IN THE STOLEN LICENCE ; AND
2 . ORDER THE COMMISSION TO PAY TO THE APPLICANT BY WAY OF DAMAGES SUCH SUMS AS SHALL BE DETERMINED DURING THE COURSE OF THE PROCEEDINGS .
3 ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES SHALL STATE THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .
4 THE APPLICANT HAS NOT SATISFIED THIS REQUIREMENT . IT IS RIGHT TO OBSERVE IN THIS RESPECT AND WITHOUT PREJUDICE TO THE DECISION IN THE MAIN ACTION THAT IT DOES NOT SEEM TO HAVE BEEN ESTABLISHED PRIMA FACIE THAT THE COMMISSION IS ENTITLED TO AUTHORIZE NATIONAL AUTHORITIES TO ISSUE AN EXPORT LICENCE UNDER THE COMMUNITY RULES IN THE MATTER . THE ISSUE OF SUCH A LICENCE SEEMS TO FALL WITHIN THE POWERS OF THE MEMBER STATES WHO MUST THEMSELVES ASSESS THE CONDITIONS FOR APPLYING COMMUNITY LAW NOR DOES IT SEEM THAT THE COMMISSION HAS ANY POWER IN A PARTICULAR CASE TO RESTRICT THE DISCRETION OF THE MEMBER STATES . IT THEREFORE APPEARS THAT THE APPLICANT ' S ACTION IS BASICALLY DIRECTED AGAINST THE REFUSAL BY THE ITALIAN AUTHORITIES TO AUTHORIZE THE EXPORT IN THE CIRCUMSTANCES DESIRED BY THE APPLICANT . A REVIEW OF ADMINISTRATIVE ACTS OF MEMBER STATES IN APPLYING COMMUNITY LAW IS PRIMARILY A MATTER FOR NATIONAL COURTS WITHOUT PREJUDICE TO THEIR POWER TO REFER QUESTIONS FOR A PRELIMINARY RULING TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY . IN THE CIRCUMSTANCES IT APPEARS PRIMA FACIE THAT THE REMEDY IS AN ACTION BEFORE THE NATIONAL COURTS TO WHICH THE APPLICANT HAS IN FACT ALREADY APPLIED . IT IS NOT FOR THE COURT OF JUSTICE WHEN CONSIDERING INTERIM MEASURES TO INQUIRE WHY THE APPLICANT HAS NOT OBTAINED SATISFACTION THROUGH THE REMEDIES WHICH MUNICIPAL LAW GIVES IT .
5 FURTHER, THE GRANT OF INTERIM MEASURES UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE IS SUBJECT TO THE CONDITION THAT THERE IS URGENCY WHICH MUST BE SHOWN MORE PARTICULARLY BY THE IMMINENCE OF SERIOUS AND IRREPARABLE DAMAGE .
6 IN THIS RESPECT THE APPLICANT SEEMS TO ALLEGE IN THE FIRST PLACE THAT IT WILL NOT BE ABLE TO EXPORT THE 12 500 TONNES OF DURUM WHEAT MEAL IN QUESTION UNLESS IT OBTAINS THE LICENCE IT SEEKS AND THAT IF IT IS NOT ENABLED TO EXPORT VERY SHORTLY IT WILL BE FORCED TO USE THE GOODS AVAILABLE IN ITS STORES FOR NORMAL BUSINESS PRODUCTION WITH THE RESULT THAT TO SATISFY ITS DELIVERY COMMITMENTS IT WILL HAVE TO PURCHASE THE RAW MATERIAL ON THE MARKET AT APPRECIABLY HIGHER PRICES .
7 IT APPEARS FROM THE APPLICANT ' S STATEMENT AND IN PARTICULAR THE ARGUMENTS WHICH IT HAS PUT FORWARD IN SUPPORT OF ITS APPLICATION OF 27 OCTOBER 1979 MADE TO THE PRESIDENT OF THE COURT IN LUCCA FOR A DECLARATION OF THE QUANTITY OF WHEAT IT HAS AVAILABLE THAT IT WILL BE ABLE TO USE THOSE GOODS FOR EXPORT AFTER APPLYING TO THIS END TO THE COMPETENT ITALIAN AUTHORITIES FOR ANOTHER EXPORT LICENCE RELATING TO THE SAME QUANTITY BUT SUBJECT, AS REGARDS THE REFUND, TO THE RULES APPLICABLE ON THE DAY OF ISSUE OF THAT LICENCE .
8 IN THE SECOND PLACE AND STILL IN RELATION TO THE IMMINENCE OF SERIOUS AND IRREPARABLE DAMAGE, THE APPLICANT ALLEGES THAT IF ITS CLAIM IS NOT GRANTED IT WILL LOSE THE WHOLE OF THE REFUND FIXED IN ADVANCE, THAT IS SOME 2 100 MILLION LIRE, SINCE THE REFUNDS FOR THE PRODUCT IN QUESTION HAVE IN THE MEANTIME BEEN ABOLISHED .
9 EVEN IF THE AMOUNT OF THE REFUND IS TAKEN INTO ACCOUNT IT MUST NEVERTHELESS BE NOTED THAT THE APPLICANT HAS OBTAINED A BANK LOAN OF THAT AMOUNT, AND IN SPITE OF THE HEAVY INTEREST WHICH IT HAS TO PAY IT HAS BY NO MEANS ESTABLISHED THAT IT CANNOT AWAIT THE OUTCOME OF THE MAIN ACTION AND THAT NOT OBTAINING THE REFUND BEFORE JUDGMENT IN THE MAIN ACTION WILL CAUSE IT SUCH SERIOUS AND IRREPARABLE DAMAGE AS TO JUSTIFY INTERIM MEASURES IN VIEW OF THE APPLICANT ' S FINANCIAL POSITION .
10 IN CONSEQUENCE THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES MUST BE DISMISSED .
11 AT THE PRESENT STAGE OF THE PROCEEDINGS COSTS MUST BE RESERVED .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT
BY WAY OF INTERLOCUTORY DECISION, HEREBY ORDERS AS FOLLOWS :
1 . THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS DISMISSED .
2 . COSTS ARE RESERVED .