Order of the President of the Court of 16 July 1993. - French Republic v Commission of the European Communities. - Beef and veal - Common organization of the market - Action for annulment - Suspension of operation. - Case C-296/93 R.



European Court reports 1993 Page I-04181



Summary

Parties

Grounds

Operative part



Keywords

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Applications for interim measures ° Suspension of operation ° Conditions for granting ° Serious and irreparable damage

(EEC Treaty, Art. 185; Rules of Procedure of the Court of Justice, Art. 83(2))

Summary

The urgency of an application for interim measures, as referred to in Article 83(2) of the Rules of Procedure, must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage being caused by the immediate application of the measure which is the subject of the main proceedings.

With regard to an application for the suspension of the operation of a regulation amending, in a restrictive way, the conditions for the eligibility for intervention of certain agricultural products, the applicant does not establish the urgency of the measure sought in order to prevent serious and irreparable damage where its argument is based on the presumed economic behaviour of farmers in the sector in question and is not supported by evidence making out a sufficiently probable case that that conduct will materialize.

Parties

In Case C-296/93 R,

French Republic, represented by Ph. Pouzoulet, Deputy Director in the Legal Affairs Department of the Ministry of Foreign Affairs, acting as Agent, and J.-L. Falconi, Secretary for Foreign Affairs in that Ministry, acting as Deputy Agent, with an address for service in Luxembourg at the French Embassy, 9 Boulevard du Prince Henri,

applicant,

v

Commission of the European Communities, represented by Gérard Rozet, Legal Adviser, and Christopher Docksey, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

United Kingdom of Great Britain and Northern Ireland, represented by John D. Colahan, acting as Agent, assisted by Eleanor Sharpston, Barrister-at-law, with an address for service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,

intervener,

APPLICATION under Article 185 of the EEC Treaty for the suspension of the operation of Commission Regulation (EEC) No 685/93 of 24 March 1993 amending Commission Regulation (EEC) No 859/89 laying down detailed rules for the application of general and special intervention measures in the beef and veal sector (OJ 1993 L 73, p. 9),

THE PRESIDENT OF THE COURT

makes the following

Order

Grounds

1 By an application lodged at the Court Registry on 25 May 1993, the French Republic brought an action under the first paragraph of Article 173 of the EEC Treaty seeking the annulment of Commission Regulation (EEC) No 685/93 of 24 March 1993 amending Commission Regulation (EEC) No 859/89 laying down detailed rules for the application of general and special intervention measures in the beef and veal sector (OJ 1993 L 73, p. 9).

2 By separate document lodged at the Court Registry on 10 June 1993, the French Republic has also asked the Court, under Article 185 of the Treaty and Article 83 of the Rules of Procedure, for an order suspending the operation of the contested regulation until it has given judgment in the main proceedings.

3 By order of 5 July 1993, the United Kingdom was given leave to intervene in the proceedings for interim measures in support of the form of order sought by the Commission.

4 The Commission submitted written observations on the application for interim measures on 30 June 1993 and the parties, including the intervener, presented oral argument on 5 July 1993.

5 Before considering the justification of the application for interim measures, it is appropriate to call to mind the broad lines of the legislation governing the common organization of the markets in beef and veal.

6 The common organization of the markets in beef and veal was established by Council Regulation (EEC) No 805/68 of 27 June 1968 (OJ, English Special Edition 1968(I), p. 187), as amended on several occasions, which, among the price measures laid down, provides for a range of measures relating to premiums and intervention.

7 The measures relating to premiums were substantially modified as part of the reform of the Common Agricultural Policy by Regulation (EEC) No 2066/92 of 30 June 1992 (OJ 1992 L 215, p. 49) in order to take account of the new developments in that policy and in particular of the reduction in the intervention price for beef that was necessary in order to redress the situation of agriculture in general.

8 The intervention measures consist either of private storage aid or of buying-in by intervention agencies. Under Article 5(2) of Regulation No 805/68, cited above, such intervention measures may be taken "for adult bovine animals as well as for fresh or chilled meat of such animals presented in the form of carcases, half-carcases, compensated quarters, fore quarters or hind quarters, classified in accordance with the Community classification scale provided for in Regulation (EEC) No 1208/81".

9 Public intervention consists of three types of measures:

° so-called normal or traditional intervention measures, effected through tendering procedures, up to an annual ceiling for the whole of the Community which is to decrease from 750 000 tonnes in 1993 to 350 000 tonnes from 1997 onwards; the Commission, acting in accordance with the so-called management committee procedure, has a discretion to decide on the opening of such intervention buying-in where the required conditions are fulfilled;

° so-called safety-net intervention measures, which are not counted against the abovementioned buying-in ceiling and in respect of which the Commission has no discretion as regards the decision to open buying-in;

° special intervention measures for lightweight carcases (between 150 and 200 kg) of male bovine animals, which apply only for a period of three years (1 January 1993 to 31 December 1995) and subject to certain conditions.

10 The arrangements for implementing public intervention in a Member State are determined by Council Regulation No 805/68, Article 6(7) of which sets out the various powers delegated to the Commission in this area.

11 The detailed rules for the application of the intervention measures are laid down in Commission Regulation (EEC) No 859/89 of 29 March 1989 (OJ 1989 L 91, p. 5), which describes the tendering procedure extensively and defines, in Article 4, the various conditions which products must satisfy for the purposes of buying-in. It is precisely those conditions which the contested measure, adopted by the so-called management committee procedure pursuant to Article 6(7) of Regulation No 805/68, amends by introducing a gradual limitation of the weight of carcases that may be bought in under the normal intervention procedure, such that products may be bought in only if they come from carcases whose weight does not exceed the following levels:

° 380 kg as from the first tendering procedure of July 1993,

° 360 kg as from the first tendering procedure of January 1994,

° 340 kg as from the first tendering procedure of July 1994.

12 By adopting the contested regulation, the Commission sought to convey a message to producers with a view to their committing themselves not to produce heavy carcases for buying-in. According to the preamble to the regulation, there has been a trend towards increasingly heavy beef and veal carcases, made possible in particular by genetic progress, which encourages production intended for intervention because frequently there is no market demand for such carcases. Before the Court, the Commission explained that such a message had to have an effect as from 1993, since the outlook on the market was relatively favourable for 1993 and 1994, whilst a return to a higher phase in the production cycle was expected to be recorded in 1995.

13 According to Article 185 of the Treaty, actions brought before the Court do not have suspensory effect. However, under Articles 185 and 186 of the Treaty, the Court may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe the necessary interim measures.

14 According to Article 83(2) of the Rules of Procedure, a decision ordering the suspension of the operation of a measure or any interim measure is dependent upon the existence of circumstances giving rise to urgency and factual and legal grounds establishing a prima facie case for the interim measures applied for.

15 As regards the existence of factual and legal grounds establishing a prima facie case for the interim measure, the applicant maintains that Regulation No 685/93 is vitiated by illegality.

16 In that connection, the applicant puts forward a number of pleas in law alleging infringement of certain provisions of Regulation No 805/68, in particular Article 6(7) thereof, the Commission' s lack of competence to adopt the contested regulation and breach of the general principle of equality and of the principle of proportionality. It also considers that the factual assessment which led to the adoption of the contested regulation is vitiated by manifest error.

17 In that regard, it is sufficient to note that the application raises complex legal issues warranting detailed consideration after discussion involving all the parties and that the application does not appear prima facie to be devoid of all justification. Consequently, it cannot be rejected on that ground.

18 As regards the requirement for urgency, it should be pointed out that the Court has consistently held that the urgency of an application for interim measures, as referred to in Article 83(2) of the Rules of Procedure, must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage being caused by the immediate application of the measure which is the subject of the main proceedings.

19 In that regard, the applicant argues that the immediate application of the measures limiting the weight of carcases eligible for intervention will cause serious and irreparable damage in France as from autumn 1993 to the whole class of producers of bovine animals intended for fattening and will have equally serious and irreparable consequences for land use nationally.

20 In the applicant' s view, the limitation to 340 kg as from July 1994 for intervention carcases will be that, from that date onwards, 70% of carcases will no longer be eligible for intervention and will come on to the market, which will have to absorb an additional quantity of 100 000 tonnes. This will cause prices to decline by about 10%.

21 It submits that French farmers specializing in the fattening of bovine animals will anticipate that decline in prices and, from autumn 1993, will limit their purchases on the market of bovines for fattening, whose prices will fall by 15%. Such a fall in prices would pose an immediate threat to the economic viability of fatteners and stockbreeders, who are very vulnerable in view of their specialization and the paucity of their resources. In view of the concentration of those farmers in particular regions (Limousin, Auvergne, Burgundy), which are among the least favoured regions from an economic point of view, the contested regulation would have serious and irremediable effects on land use in France. The applicant adds that fatteners and stockbreeders have no means of limiting their losses, since the beasts intended for slaughter in autumn 1994 have already been born.

22 The Commission, the defendant, disputes the alleged impact of the measure in question on the quantity of beef and veal which will come on to the market in July 1994, in particular the figure of 70% put forward by the applicant. It maintains that French producers knew well before the adoption of the contested regulation that new limits on carcase weight would have to be complied with in order to qualify for intervention; it argues that they had sufficient time to adjust the medium-term planning of their cattle raising so as to produce lighter carcases. It points out that the 340 kg limitation was not made applicable until one year after 1 July 1995, that is to say, 15 months after the contested regulation was adopted.

23 The Commission further considers that farmers specializing in fattening bovines can limit the weight of the carcases they produce by slaughtering beasts earlier and by making more moderate use of protein-containing feedingstuffs used to supplement grass feed.

24 It further argues that it is not seeking to condemn the production of heavy carcases, provided that their production is geared to actual outlets on the market and not to qualifying for the second market which intervention culminated in being for some.

25 The Commission states that if, against all expectation and despite the favourable forecasts for 1994, the market in beef and veal should collapse, it would use every appropriate means at its disposal, including the amendment, or even the abolition, of the limits at issue.

26 It must be observed that the whole of the applicant' s argument is based on the presumed economic behaviour of farmers specializing in the fattening of bovine animals, who, it is said, will anticipate the effects on the market of the limitation in the weight of carcases eligible for intervention and reduce their purchases of bovines for fattening. However, the applicant has not adduced any evidence making out a sufficiently probable case that that conduct will materialize.

27 In the first place, the applicant has not cogently shown why the farmers should not continue ° despite the intervention weight limits ° to shift their production towards heavier carcases, since, according to the applicant, such carcases provide better quality meat and sell better on the market.

28 Secondly, the applicant has not established that the farmers concerned had no leeway to preserve ° had they wished to so do ° the eligibility of their production for intervention by slaughtering their beasts earlier or by limiting their use of protein-containing feedingstuffs.

29 It should also be observed that, when making their economic forecasts, meat producers should take account of the relatively favourable prospects for the market in 1994 and ° should the situation on the market deteriorate ° of the possibilities afforded by private storage aid and by so-called safety-net intervention measures, which are not subject to the contested weight limitations.

30 It follows from the above that the applicant has not established the urgency of the measure applied for in order to avoid serious and irreparable damage.

31 Consequently, the application for interim measures must be dismissed.

Operative part

On those grounds,

THE PRESIDENT OF THE COURT

hereby:

1. Dismisses the application for interim measures;

2. Reserves the costs.

Luxembourg, 16 July 1993.