Order of the President of the Court of 10 July 1986. - Kingdom of Spain v Commission of the European Communities. - Viticultural products - Regulatory amounts. - Case 128/86 R.



European Court reports 1986 Page 02495



Parties

Subject of the case

Grounds

Operative part



Keywords

APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE - SUSPENSION OF OPERATION OF A DECISION - CONDITIONS FOR GRANTING - SERIOUS AND IRREPARABLE DAMAGE

( EEC TREATY , ART . 185 ; RULES OF PROCEDURE , ART . 83 ( 2 ))

Parties

IN CASE 128/86 R

KINGDOM OF SPAIN , REPRESENTED BY THE MINISTER FOR FOREIGN AFFAIRS , ACTING THROUGH HIS AGENT , L . J . CASANOVA FERNANDEZ , SECRETARY-GENERAL FOR THE EUROPEAN COMMUNITIES , ASSISTED BY F . MANSITO CABALLERO , DIRECTOR-GENERAL FOR THE COORDINATION OF LEGAL AND INSTITUTIONAL RELATIONS WITH THE COMMUNITIES , J . FOLGUERA CRESPO , ASSISTANT DIRECTOR-GENERAL FOR THE COORDINATION OF LEGAL AFFAIRS CONCERNING THE COMMUNITIES , R . SILVA LAPUERTA , A MEMBER OF THE LEGAL DEPARTMENT OF THE MINISTRY OF FOREIGN AFFAIRS , M . FUERTES SUAREZ , TECHNICAL ADVISER AT THE OFFICE OF THE SECRETARY OF STATE FOR THE EUROPEAN COMMUNITIES , AND M . WAELBROECK , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE SPANISH EMBASSY , 6 BOULEVARD EMMANUEL-SERVAIS ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS AGENTS , J.-C . SECHE AND C . PALACIO , MEMBERS OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS , ALSO A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR AN ORDER SUSPENDING THE OPERATION OF COMMISSION REGULATION ( EEC ) NO 648/86 OF 28 FEBRUARY 1986 FIXING THE REGULATORY AMOUNTS FOR 1985/86 FOR IMPORTS OF CERTAIN VITICULTURAL PRODUCTS FROM SPAIN INTO THE COMMUNITY AS CONSTITUTED AT 31 DECEMBER 1985 ( OFFICIAL JOURNAL 1986 , L 60 , P . 54 ) AND COMMISSION REGULATION ( EEC ) NO 969/86 OF 3 APRIL 1986 AMENDING REGULATION NO 648/86 ( OFFICIAL JOURNAL 1986 , L 89 , P . 22 ).

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 26 MAY 1986 , THE KINGDOM OF SPAIN BROUGHT AN ACTION UNDER THE FIRST PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION REGULATION ( EEC ) NO 648/86 OF 28 FEBRUARY 1986 ( OFFICIAL JOURNAL 1986 , L 60 , P . 54 ) FIXING THE REGULATORY AMOUNTS FOR 1985/86 FOR IMPORTS OF CERTAIN VITICULTURAL PRODUCTS FROM SPAIN INTO THE COMMUNITY AS CONSTITUTED AT 31 DECEMBER 1985 ( HEREINAFTER REFERRED TO AS ' THE COMMUNITY OF TEN ' ) AND COMMISSION REGULATION ( EEC ) NO 969/86 OF 3 APRIL 1986 AMENDING REGULATION NO 648/86 ( OFFICIAL JOURNAL 1986 , L 89 , P . 22 ), ARE VOID .

2 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 9 JUNE 1986 , THE APPLICANT APPLIED UNDER ARTICLE 185 OF THE EEC TREATY , ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC AND ARTICLE 83 OF THE RULES OF PROCEDURE FOR AN ORDER SUSPENDING THE OPERATION OF COMMISSION REGULATIONS NOS 648/86 OF 28 FEBRUARY 1986 AND 969/86 OF 3 APRIL 1986 .

3 THE DEFENDANT SUBMITTED ITS WRITTEN OBSERVATIONS ON 24 JUNE 1986 . THE PARTIES PRESENTED ORAL ARGUMENT ON 26 JUNE 1986 .

4 BEFORE EXAMINING WHETHER OR NOT THIS APPLICATION FOR INTERIM MEASURES IS WELL-FOUNDED AND SO THAT THE PROBLEM MAY CONSIDERED IN ITS ENTIRETY , IT MAY BE HELPFUL TO PROVIDE A BRIEF DESCRIPTION OF THE MECHANISM FOR REGULATORY AMOUNTS AND THE GENERAL RULES GOVERNING THEIR APPLICATION AS LAID DOWN IN COUNCIL REGULATION ( EEC ) NO 480/86 OF 25 FEBRUARY 1986 ( OFFICIAL JOURNAL 1986 , L 54 , P . 2 ), ON THE BASIS OF WHICH THE TWO REGULATIONS WHICH ARE THE SUBJECT OF THIS APPLICATION WERE ADOPTED .

5 THE MECHANISM FOR REGULATORY AMOUNTS IS PROVIDED FOR IN ARTICLE 123 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE KINGDOM OF SPAIN AND THE PORTUGUESE REPUBLIC AND THE ADJUSTMENTS TO THE TREATIES ( OFFICIAL JOURNAL 1985 , L 302 , P . 23 , HEREINAFTER REFERRED TO AS ' THE ACT OF ACCESSION ' ). ARTICLE 123 ( 1 ) PROVIDES THAT SPANISH TABLE WINES AND WINES WITH AN APPELLATION AS TO ORIGIN ( HEREINAFTER REFERRED TO AS ' APPELLATION OF ORIGIN WINES ' ) AND OTHER SPANISH VITICULTURAL PRODUCTS LIKELY TO CREATE DISTURBANCES ON THE MARKET ARE SUBJECT , ON IMPORTATION FROM SPAIN INTO THE COMMUNITY OF TEN , TO A MECHANISM FOR REGULATORY AMOUNTS .

6 ARTICLE 123 ( 2 ) ( A ) PROVIDES THAT FOR TABLE WINES THE REGULATORY AMOUNT IS , IN PRINCIPLE , EQUAL TO THE DIFFERENCE BETWEEN THE GUIDE PRICES IN SPAIN AND IN THE COMMUNITY OF TEN BUT THAT ITS LEVEL MAY BE ADJUSTED ACCORDING TO THE MANAGEMENT COMMITTEE PROCEDURE TO TAKE ACCOUNT OF THE SITUATION OF MARKET PRICES AS ASSESSED ACCORDING TO THE DIFFERENT CATEGORIES OF WINES AND ON THE BASIS OF THEIR QUALITY . A JOINT DECLARATION ANNEXED TO THE ACT OF ACCESSION ( OFFICIAL JOURNAL 1985 , L 302 , P . 482 ) STATES IN ADDITION THAT ANY SUCH ADJUSTMENT ' SHALL BE CARRIED OUT BY TAKING INTO CONSIDERATION THE SPECIFIC PRICES OF CERTAIN TYPES OF PRODUCT ON THE BASIS OF THEIR QUALITY AND THEIR VATTING , BOTTLING AND LABELLING , WHICH SHOULD LEAD TO A REDUCTION OF THE REGULATORY AMOUNT ON THE BASIS OF THE HIGHEST PRICE FOR THESE TYPES OF WINE ' . ARTICLE 123 ( 2 ) ( B ) PROVIDES THAT THE REGULATORY AMOUNT WHICH MAY BE FIXED FOR APPELLATION OF ORIGIN WINES AND FOR OTHER VITICULTURAL PRODUCTS LIKELY TO CREATE DISTURBANCES ON THE MARKET IS TO BE DERIVED FROM THAT APPLICABLE TO TABLE WINES ACCORDING TO PROCEDURES TO BE DETERMINED .

7 ARTICLE 123 ( 3 ) PROVIDES AS FOLLOWS : ' THE REGULATORY AMOUNT SHALL BE FIXED AT A LEVEL WHICH ENSURES CONDITIONS UNDER WHICH TREATMENT IS NO LESS FAVOURABLE THAN THOSE IN FORCE UNDER THE ARRANGEMENTS PRIOR TO ACCESSION . TO THIS END , THIS AMOUNT SHALL BE CALCULATED IN SUCH A WAY THAT THE AMOUNT OBTAINED BY INCREASING THE GUIDE PRICE IN SPAIN FOR THE PRODUCT CONCERNED BY THE REGULATORY AMOUNT AND BY THE CUSTOMS DUTY APPLICABLE TO IT DOES NOT EXCEED THE REFERENCE PRICE IN FORCE FOR THE PRODUCT DURING THE WINE-GROWING YEAR CONCERNED ' . THE POSSIBILITY OF FIXING A REGULATORY AMOUNT FOR THE EXPORT OF ONE OR MORE OF THE VITICULTURAL PRODUCTS FROM THE COMMUNITY OF TEN TO SPAIN IS PROVIDED FOR IN ARTICLE 123 ( 4 ).

8 ON THE BASIS OF ARTICLE 89 ( 1 ) OF THE ACT OF ACCESSION , THE COUNCIL ADOPTED REGULATION NO 480/86 LAYING DOWN GENERAL RULES OF APPLICATION OF THE REGULATORY AMOUNTS APPLICABLE TO TRADE IN CERTAIN WINE SECTOR PRODUCTS BETWEEN THE COMMUNITY OF TEN AND SPAIN . THE FOURTH RECITAL IN THE PREAMBLE TO THE REGULATION DEFINES THE PURPOSE OF THE REGULATORY AMOUNTS AS BEING ' TO PREVENT DISTURBANCE ON THE MARKET OF THE COMMUNITY AS CONSTITUTED ON 31 DECEMBER 1985 WITHOUT AFFECTING THE TRADITIONAL PATTERN OF TRADE IN THE ABOVEMENTIONED PRODUCTS ' .

9 ARTICLE 2 ( 1 ) OF THE REGULATION PROVIDES THAT FOR EACH TYPE OF TABLE WINE ' THE REGULATORY AMOUNT SHALL , FOR EACH WINE YEAR , BE EQUAL TO THE DIFFERENCE BETWEEN THE GUIDE PRICE SET FOR THE COMMUNITY AS CONSTITUTED ON 31 DECEMBER 1985 AND THAT SET FOR SPAIN ' . ARTICLE 2 ( 2 ) PROVIDES THAT THE REGULATORY AMOUNT MAY BE ADJUSTED TO TAKE ACCOUNT OF THE PRICE SITUATION ON THE MARKET IN THE COMMUNITY OF TEN AND IN SPAIN AND , ACCORDING TO ARTICLE 2 ( 3 ), FOR CERTAIN TABLE WINES THAT ADJUSTMENT IS TO BE EFFECTED TAKING INTO CONSIDERATION , IN PARTICULAR , THEIR SPECIFIC PRICES ON THE PRODUCTION MARKET AND THE TYPE OF VATTING , BOTTLING AND LABELLING USED . ARTICLE 3 PROVIDES THAT A REGULATORY AMOUNT MAY BE FIXED FOR CERTAIN APPELLATION OF ORIGIN WINES AND FOR THE PRODUCTS COVERED BY ARTICLE 5 IF THERE IS A RISK OF DISTURBANCE TO THE MARKET IN THE COMMUNITY OF TEN .

10 ACCORDING TO ARTICLE 6 , THE REGULATORY AMOUNTS ARE TO BE ADJUSTED TAKING INTO ACCOUNT , IN PARTICULAR , THE TREND AND FEATURES OF TRADE COMPARED WITH THE TRADITIONAL PATTERN AND THE RISK OF DISTURBANCE AND ARE NOT TO EXCEED THE LEVEL SET BY ARTICLE 123 ( 3 ) OF THE ACT OF ACCESSION . PURSUANT TO ARTICLE 123 ( 4 ) OF THE ACT OF ACCESSION , ARTICLE 7 OF THE REGULATION PROVIDES THAT A REGULATORY AMOUNT FOR EXPORTS OF CERTAIN VITICULTURAL PRODUCTS FROM THE COMMUNITY OF TEN TO SPAIN MAY BE FIXED WHERE THERE IS A RISK THAT THE MARKET TREND OF THE COMMUNITY OR THE SPANISH MARKET MAY CALL INTO QUESTION THE NORMAL PATTERN OF TRADE OF THOSE PRODUCTS BETWEEN THE COMMUNITY OF TEN AND SPAIN .

11 PURSUANT TO ARTICLE 11 OF REGULATION NO 480/86 , ON 28 FEBRUARY 1986 THE COMMISSION ADOPTED REGULATION NO 648/86 WHEREBY IT FIXED THE REGULATORY AMOUNTS FOR IMPORTS OF CERTAIN TYPES OF SPANISH WINES FROM SPAIN INTO THE COMMUNITY . ON 3 APRIL 1986 IT AMENDED THAT REGULATION BY REGULATION NO 969/86 , WHICH WAS ADOPTED IN ORDER TO CORRECT CERTAIN CLERICAL ERRORS CONCERNING THE REGULATORY AMOUNTS FOR CERTAIN VITICULTURAL PRODUCTS .

12 THOSE TWO REGULATIONS ARE THE SUBJECT OF AN APPLICATION FOR THE SUSPENSION OF THEIR OPERATION LODGED BY THE APPLICANT . IN THE APPLICANT ' S VIEW , WHEN IT ADOPTED THE CONTESTED REGULATIONS THE COMMISSION FAILED TO COMPLY WITH CERTAIN ESSENTIAL PROCEDURAL REQUIREMENTS . MOREOVER IT INFRINGED ARTICLE 123 ( 2 ) ( A ) AND ( B ) AND ARTICLE 123 ( 3 ) OF THE ACT OF ACCESSION AND THE CORRESPONDING PROVISIONS OF COMMISSION REGULATION ( EEC ) NO 408/86 :

( I ) BY FIXING REGULATORY AMOUNTS FOR TABLE WINES WITHOUT TAKING ACCOUNT OF THE RULE LAID DOWN IN THE FIRST SENTENCE OF ARTICLE 123 ( 3 ) OF THE ACT OF ACCESSION CONCERNING THE LEVEL AT WHICH THEY MAY BE SET ;

( II)BY FAILING TO ADJUST THE REGULATORY AMOUNTS FOR QUALITY TABLE WINES ; AND

( III)BY FIXING A REGULATORY AMOUNT FOR APPELLATION OF ORIGIN WINES ALTHOUGH THOSE WINES HAVE NOT CREATED DISTURBANCES ON THE MARKET .

13 ACCORDING TO ARTICLE 185 OF THE EEC TREATY ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . THE COURT OF JUSTICE MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED ACT BE SUSPENDED .

14 ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT AN APPLICATION FOR INTERIM MEASURES MUST STATE THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR AND THE CIRCUMSTANCES GIVING RISE TO URGENCY .

15 THE COURT HAS CONSISTENTLY HELD THAT THE URGENCY OF AN APPLICATION FOR INTERIM MEASURES REFERRED TO IN ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE MUST BE ASSESSED IN THE LIGHT OF THE EXTENT TO WHICH AN INTERLOCUTORY ORDER IS NECESSARY TO AVOID SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY SEEKING THE INTERIM MEASURE .

16 IN THAT CONNECTION , IN ORDER TO SHOW THAT THE REGULATORY AMOUNTS AS FIXED BY COMMISSION REGULATIONS NOS 648/86 AND 969/86 SERIOUSLY DAMAGE SPANISH EXPORTS OF VITICULTURAL PRODUCTS , THE APPLICANT CLAIMS THAT THEIR IMPOSITION MAKES IT MUCH MORE DIFFICULT TO EXPORT SPANISH WINE . THE REGULATORY AMOUNTS HAVE BROUGHT ABOUT A CONSIDERABLE FALL IN THE LEVEL OF SUCH EXPORTS AND HAVE ALMOST COMPLETELY PARALYSED EXPORTS OF CERTAIN TYPES OF WINE SUCH AS TABLE WINES , WHETHER RED , ROSE OR WHITE . IN ADDITION , IT CONSIDERS THAT THE REGULATORY AMOUNTS ALSO MAKE IT PRACTICALLY IMPOSSIBLE TO ATTAIN THE INDICATIVE IMPORT CEILINGS LAID DOWN IN ARTICLE 1 OF COMMISSION REGULATION ( EEC ) NO 647/86 OF 28 FEBRUARY 1986 LAYING DOWN CERTAIN DETAILED RULES FOR THE APPLICATION OF THE SUPPLEMENTARY TRADE MECHANISM ( STM ) TO VITICULTURAL PRODUCTS ( OFFICIAL JOURNAL 1986 , L 60 , P . 50 ). IN SUPPORT OF ITS VIEW THE APPLICANT REFERS TO THE STATISTICAL TABLES CONTAINED IN ANNEX II TO ITS APPLICATION FOR INTERIM MEASURES . THE FIGURES IN QUESTION ARE CONSIDERED IN PARAGRAPH 18 OF THIS ORDER .

17 THE APPLICANT ALSO ALLEGES THAT THE DAMAGE IT HAS SUFFERED AS A RESULT OF THE FIXING OF THE REGULATORY AMOUNTS IS IRREPARABLE . THEY HAVE BROUGHT ABOUT A SIGNIFICANT FALL IN THE LEVEL OF SPANISH EXPORTS AND , CONSEQUENTLY , SPANISH EXPORTERS ARE LOSING THEIR MARKET SHARES AND THEIR OUTLETS IN THE COMMUNITY . IF THAT SITUATION WERE TO CONTINUE FOR THE DURATION OF THE MAIN PROCEEDINGS BEFORE THE COURT THERE IS A RISK THAT MARKETS WOULD BE LOST IRRETRIEVABLY .

18 IN ORDER TO SHOW THE REALITY AND SCALE OF THE FALL IN SPANISH EXPORTS OF VITICULTURAL PRODUCTS TO THE COMMUNITY OF TEN , THE APPLICANT REFERS TO TWO TABLES OF STATISTICS CONTAINED IN ANNEX II TO ITS APPLICATION FOR INTERIM MEASURES . THE FIRST TABLE COMPARES THE EXPORTS OF DIFFERENT TYPES OF SPANISH WINES ACTUALLY EFFECTED DURING THE TWO MONTHS FOLLOWING THE ENTRY INTO FORCE OF THE REGULATORY AMOUNTS AS FIXED BY COMMISSION REGULATIONS NOS 648/86 AND 969/86 , NAMELY MARCH AND APRIL 1986 , WITH THE MONTHLY AVERAGE OF EXPORTS EFFECTED IN 1985 . THE SECOND TABLE SHOWS THE INDICATIVE EXPORT CEILINGS PER CATEGORY OF WINE OVER SIX MONTHS , THE QUANTITY WHICH MAY BE EXPORTED EACH MONTH WITHIN THOSE LIMITS AND THE EXPORTS WHICH WERE ACTUALLY EFFECTED DURING THE MONTHS OF MARCH AND APRIL 1986 . IN THAT CONNECTION THE APPLICANT SUBMITS THAT IN RELATION TO EACH TYPE OF WINE THE LEVEL OF ACTUAL EXPORTS WAS AT BEST NO MORE THAN THREE QUARTERS OF THE QUANTITY WHICH COULD BE EXPORTED WITHIN THE LIMITS OF THE INDICATIVE CEILING .

19 THE APPLICANT IS OF THE OPINION THAT THE FIRST TABLE PRODUCED BY IT CLEARLY SHOWS THAT FOR ALL TYPES OF WINE , WITH THE EXCEPTION OF WHITE QUALITY WINES , THE LEVEL OF ACTUAL EXPORTS IN MARCH AND APRIL 1986 WAS CONSIDERABLY LOWER THAN THE MONTHLY AVERAGE FOR 1985 . THAT FALL WAS PARTICULARLY APPRECIABLE IN RELATION TO WHITE TABLE WINES AND ROSE AND RED TABLE WINES FOR WHICH THE LEVEL OF EXPORTS IN MARCH AND APRIL VARIED BETWEEN A MERE 15 AND 26% OF THE MONTHLY AVERAGE FOR 1985 . THE FALL WAS MOREOVER A DIRECT CONSEQUENCE OF THE REGULATORY AMOUNTS AS FIXED BY COMMISSION REGULATIONS NOS 648/86 AND 969/86 .

20 THE DEFENDANT DISPUTES THAT EXPORTS OF SPANISH VITICULTURAL PRODUCTS FELL AS A RESULT OF THE ENTRY INTO FORCE ON 1 MARCH 1986 OF THE AFOREMENTIONED REGULATORY AMOUNTS . IT PRODUCES , IN PARTICULAR , A TABLE OF STATISTICS CONTAINED IN THE ANNEX TO ITS OBSERVATIONS WHICH COMPARES THE AVERAGE MONTHLY LEVEL OF EXPORTS ACTUALLY EFFECTED , CALCULATED ON THE BASIS OF ACTUAL EXPORTS IN 1982 , 1983 AND 1984 , AND THE LICENCES GRANTED IN MARCH , APRIL AND MAY 1986 . SINCE THE FIGURES DERIVED FROM THE LICENCES WERE HIGHER THAN THE AVERAGE MONTHLY LEVEL OF EXPORTS THE DEFENDANT CONCLUDES THAT EXPORTS TO THE COMMUNITY OF TEN HAVE INCREASED SLIGHTLY SINCE 1 MARCH 1986 .

21 THE DEFENDANT ALSO CONTENDS THAT EVEN IF IT IS SHOWN THAT SPANISH EXPORTS OF VITICULTURAL PRODUCTS HAVE FALLEN SINCE THE ENTRY INTO FORCE OF THE REGULATORY AMOUNTS , THAT FALL SHOULD NOT NECESSARILY BE IMPUTED TO THOSE AMOUNTS . THE FALL COULD EASILY BE EXPLAINED BY THE CHANGE IN THE ADMINISTRATIVE ARRANGEMENTS WHICH MAY HAVE ENCOURAGED EXPORTERS TO DEFER THEIR EXPORTS .

22 WITH REGARD TO THE APPLICANT ' S ARGUMENT CONCERNING THE INDICATIVE IMPORT CEILINGS , THE COMMISSION EMPHASIZES IN THE FIRST PLACE THAT THE FIXING OF SUCH A CEILING DOES NOT HAVE A MANDATORY EFFECT AND DOES NOT MEAN THAT THE REACHING OF THE CEILING IS SOMETHING TO WHICH SPAIN IS ENTITLED . THE EFFECT OF FIXING THE CEILING IS TO ESTABLISH A LEVEL AT WHICH , IF NECESSARY , THE PROCEDURES PROVIDED FOR IN ARTICLE 85 OF THE ACT OF ACCESSION MAY BE SET IN MOTION . IN THE SECOND PLACE , THE COMMISSION STATES IN THAT REGARD THAT , AS WAS EMPHASIZED IN PARAGRAPH 20 OF THIS ORDER , THE APPLICANT ' S CLAIMS ARE NOT CONFIRMED BY THE COMMISSION ' S STATISTICS , WHICH INDICATE THAT SPANISH EXPORTS ARE AT A HIGHER LEVEL THAN THAT CORRESPONDING TO TRADITIONAL TRADE PATTERNS AND ARE LIKELY TO ATTAIN THE INDICATIVE IMPORT CEILINGS .

23 THE DEFENDANT ALSO CONSIDERS THAT , IN ANY EVENT , ANY DAMAGE SUFFERED CANNOT BE IRREPARABLE SINCE THE EXPORTERS CONCERNED COULD ALWAYS BRING AN ACTION FOR COMPENSATION IN RESPECT OF SUCH DAMAGE UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY .

24 IN RESPONSE TO A REQUEST MADE TO THE APPLICANT AT THE HEARING , IT SUBMITTED TO THE COURT THE FIGURES FOR JANUARY , FEBRUARY AND MAY 1986 , WHICH COMPLETE THE FIRST TABLE OF STATISTICS REFERRED TO IN PARAGRAPH 20 OF THIS ORDER .

25 IN THE LIGHT OF THE FOREGOING CONSIDERATIONS , IT MUST BE STATED THAT THE FIGURES PRODUCED BY THE PARTIES TO THE PROCEEDINGS DIVERGE TO A LARGE DEGREE AND LEAD TO DIAMETRICALLY OPPOSITE CONCLUSIONS . IT MUST ALSO BE POINTED OUT THAT AT THE HEARING THE APPLICANT STATED THAT THE STATISTICS PRODUCED BY IT RELATED TO BOTH CASE 128/86 R AND CASE 119/86 R SINCE IT WAS IMPOSSIBLE TO DETERMINE WHETHER IMPORTS HAD FALLEN BECAUSE AN STM LICENCE REQUIRING THE LODGING OF A SECURITY WAS REQUIRED FROM 1 MARCH 1986 UNDER THE STM SYSTEM OR WHETHER THEY HAD FALLEN BECAUSE OF THE FIXING FROM THAT DATE OF REGULATORY AMOUNTS AT AN EXCESSIVELY HIGH LEVEL . IN ORDER TO ESTABLISH WHETHER OR NOT THERE IS SERIOUS AND IRREPARABLE DAMAGE IT THEREFORE APPEARS NECESSARY TO CONSIDER CLOSELY THE STATISTICS PROVIDED BY THE TWO PARTIES .

26 IN THAT RESPECT IT MUST BE RECOGNIZED THAT , AS THE APPLICANT RIGHTLY POINTED OUT AT THE HEARING , IN THE FIGURES WHICH THEY HAVE SUBMITTED TO THE COURT THE COMMISSION HAS COMPARED TWO ELEMENTS WHICH DO NOT APPEAR TO BE COMPARABLE , NAMELY THE NUMBER OF IMPORTS ACTUALLY EFFECTED AND THE APPLICATIONS FOR LICENCES . THE ISSUE OF A LICENCE IN ONE MONTH DOES NOT NECESSARILY MEAN THAT THE IMPORTATION TOOK PLACE DURING THAT MONTH BUT MERELY THAT IT MAY TAKE PLACE DURING THE FOUR MONTHS FROM THE DATE OF ISSUE SINCE ARTICLE 3 OF REGULATION NO 647/86 PROVIDES THAT THE LICENCE IS TO BE VALID FOR FOUR MONTHS FROM THE DAY ON WHICH IT WAS APPLIED FOR . IT WOULD THEREFORE SEEM THAT PRIMA FACIE THE CONCLUSIONS DRAWN FROM THOSE STATISTICS BY THE DEFENDANTS CANNOT BE ACCEPTED .

27 WITH REGARD TO THE STATISTICS PRODUCED BY THE APPLICANT , IT MUST BE STATED THAT ALTHOUGH THEY APPEAR TO CONTAIN INFORMATION WHICH IS RELEVANT IN ASSESSING WHETHER OR NOT SERIOUS AND IRREPARABLE DAMAGE HAS OCCURRED THEY ARE , NEVERTHELESS , NOT SUFFICIENT TO ESTABLISH THE EXISTENCE OF SUCH DAMAGE , PRINCIPALLY FOR THE FOLLOWING TWO REASONS .

28 IN THE FIRST PLACE , THE FIGURES SHOW THAT SPANISH EXPORTS OF TABLE WINE HAVE DECREASED SUBSTANTIALLY WHEREAS EXPORTS OF QUALITY WINE HAVE BARELY FALLEN OR HAVE EVEN INCREASED IN SOME CASES , FOR EXAMPLE THAT OF WHITE WINE . THE FIGURES PRODUCED FOR JANUARY AND FEBRUARY 1986 SHOW THAT A QUITE CONSIDERABLE FALL IN EXPORTS HAD ALREADY OCCURRED IN RESPECT OF TABLE WINES BUT NO SATISFACTORY EXPLANATION FOR THAT FALL HAS BEEN GIVEN . CONSEQUENTLY , IN THE LIGHT OF THE INFORMATION NOW BEFORE THE COURT , THE PRESIDENT CONSIDERS THAT IT IS NOT POSSIBLE TO ESTABLISH , AT THE MOMENT , ANY CAUSAL LINK BETWEEN THE IMPLEMENTATION OF THE REGULATORY AMOUNTS AND THE DECREASE IN THE LEVEL OF EXPORTS OF CERTAIN TYPES OF WINE .

29 IN THE SECOND PLACE , IT MUST BE RECALLED THAT ARTICLE 3 OF REGULATION NO 647/86 PROVIDES THAT AN STM LICENCE IS TO BE VALID FOR A PERIOD OF FOUR MONTHS FROM THE DAY ON WHICH IT IS APPLIED FOR . THE COMMISSION STATED AT THE HEARING THAT AS A RESULT OF ADMINISTRATIVE DIFFICULTIES IT HAD BEEN IMPOSSIBLE TO MAKE THE SYSTEM OF STM LICENCES REQUIRING THE LODGING OF A SECURITY OPERATIONAL IN PRACTICE UNTIL 13 MARCH 1986 . IT THEREFORE APPEARS THAT , WHATEVER THEIR RELEVANCE , THE STATISTICS PRODUCED BY THE APPLICANT DO NOT RELATE TO A SUFFICIENTLY LONG PERIOD OF TIME TO ENABLE THE COURT TO OBTAIN AN ACCURATE PICTURE OF THE SITUATION . AT THE VERY LEAST IT APPEARS THAT THE MINIMUM REFERENCE PERIOD SHOULD BE FOUR MONTHS FROM THE ACTUAL ENTRY INTO FORCE OF THE SYSTEM , THAT IS TO SAY IT SHOULD EXTEND AT LEAST UNTIL 13 JULY 1986 . SINCE ARTICLE 1 ( 1 ) OF REGULATION NO 647/86 FIXED THE INDICATIVE IMPORT CEILINGS FOR SPANISH VITICULTURAL PRODUCTS IMPORTED INTO THE COMMUNITY IN RESPECT OF THE 1985/86 MARKETING YEAR FOR THE PERIOD BETWEEN 1 MARCH 1986 AND 31 AUGUST 1986 , IT WOULD APPEAR MORE LOGICAL TO EXTEND THE REFERENCE PERIOD TO THE LATTER DATE .

30 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANT HAS FAILED TO ADDUCE EVIDENCE SHOWING THAT THE APPLICATION OF THE REGULATORY AMOUNTS AS FIXED BY COMMISSION REGULATIONS NOS 648/86 AND 969/86 WOULD CAUSE SERIOUS DAMAGE TO EXPORTS IN THE WINE SECTOR . WITH REGARD TO THE IRREPARABLE NATURE OF ANY DAMAGE , THE APPLICANT HAS BEEN UNABLE TO SHOW THAT A FALL IN EXPORTS , IN PARTICULAR WHERE IT AFFECTS ONLY THE TABLE WINES SECTOR , NECESSARILY RESULTS IN A LOSS OF CERTAIN MARKETS .

31 SINCE THE APPLICANT HAS FAILED TO SHOW THE URGENCY OF THE SITUATION , AS REQUIRED BY ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE , IT DOES NOT APPEAR NECESSARY TO EXAMINE THE FACTUAL AND LEGAL GROUNDS RELIED UPON BY IT TO ESTABLISH A PRIMA FACIE CASE FOR THE GRANT OF THE INTERIM MEASURE APPLIED FOR .

Operative part

ON THOSE GROUNDS ,

THE PRESIDENT ,

BY WAY OF INTERIM DECISION ,

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION IS DISMISSED .

( 2 ) THE COSTS ARE RESERVED .