Keywords

Summary



Keywords

1. Agriculture ° Common organization of the markets ° Bananas ° Import scheme ° Tariff quota ° Revision of the forecast balance between production and consumption ° Taking into account of circumstances relating to the production or importation of third-country bananas and non-traditional ACP bananas ° Precluded ° Lawful by way of transitional measures intended to assist transition to the Community scheme ° Conditions

(Council Regulation No 404/93, Arts 16(3), 19(2) and 30)

2. Agriculture ° Common organization of the markets ° Bananas ° Import scheme ° Tariff quota ° Measures intended to assist transition to the Community scheme ° Commission' s failure to act ° Grant by a national court of interim measures ° Not permissible ° Possibility for the Member State or the trader concerned to bring the matter before the Commission or the Community judicature

(EC Treaty, Arts 173, 175 and 186; Council Regulation No 404/93, Arts 27 and 30)

Summary

1. Although Article 16(3) of Regulation No 404/93 on the common organization of the market in bananas requires the Commission to revise the forecast balance between production and consumption determining the annual tariff quota for imports of third-country bananas and non-traditional ACP bananas in order to take account of the effects of exceptional circumstances affecting production conditions in the Community or import conditions for traditional ACP bananas, regard may not be had to circumstances affecting production conditions or import conditions for third-country bananas and non-traditional ACP bananas in order to justify such a revision.

It follows that Article 16(3) does not allow the Commission to lay down rules catering for cases of hardship arising from the fact that importers of third-country bananas or non-traditional ACP bananas meet with difficulties threatening their existence when an exceptionally low quota has been allocated to them on the basis of the reference years to be taken into consideration under Article 19(2) of the Regulation.

On the other hand, as regards Article 30 of Regulation No 404/93, which requires the Commission to take any transitional measures it judges necessary in order to assist the transition from national arrangements to the common organization of the markets, the Commission must take into consideration the situation of traders who, in the context of prior national arrangements, have taken action without having been able to foresee the consequences which that action would have after the establishment of the common organization of the markets. Such intervention is required in particular where, in the case of some traders, the transition to the common organization infringes fundamental rights protected by Community law, such as the right to property and the right to pursue a professional or trade activity.

It follows that Article 30 of Regulation No 404/93 authorizes and, depending on the circumstances, requires the Commission to lay down rules catering for cases of hardship arising from the fact that importers of third-country bananas or non-traditional ACP bananas meet difficulties threatening their existence when an exceptionally low quota has been allocated to them on the basis of the reference years to be taken into consideration under Article 19(2) of that Regulation, where those difficulties are inherent in the transition from the national arrangements existing before the entry into force of the Regulation to the common organization of the market and are not caused by a lack of care on the part of the traders concerned.

2. Since the Treaty has made no provision for a reference for a preliminary ruling by which a national court asks the Court of Justice to rule that an institution has failed to act and since review of alleged failure to act can be exercised only by the Community judicature, national courts have no jurisdiction to order interim measures pending action on the part of the institution. In such a situation, only the Court of Justice or the Court of First Instance, as the case may be, can ensure judicial protection for the persons concerned.

The Treaty does not therefore authorize national courts to order provisional measures in proceedings for the grant of interim relief until such time as the Commission has adopted an act with legal effect to deal with cases of hardship affecting the traders, in accordance with Article 30 of Regulation No 404/93 concerning the revision of the forecast balance between production and consumption of bananas which determines the volume of the annual tariff quota for imports from third countries and imports of non-traditional ACP bananas. In such circumstances, it is for the relevant Member State, urged if necessary by the trader concerned, to request initiation of that procedure, without prejudice to an approach to the Commission directly by the trader, requesting it to adopt the specific measures required by his situation. If the Community institution fails to act, the Member State may bring an action for failure to act before the Court of Justice, and the trader concerned, who would be the addressee of the measure which the Commission is alleged to have failed to adopt or at least directly and individually concerned by it, could bring such an action before the Court of First Instance.

In such actions for failure to act, the Community judicature could, at the applicant' s request, adopt interim measures under Article 186 of the Treaty. Moreover, where the Commission expressly refuses to act or adopts a measure different from that which the persons concerned sought or considered to be necessary, the Member State or the trader concerned may seek annulment of that measure by the Court of Justice or the Court of First Instance.