Order of the Court of 12 July 1993. - Association Bananière Camerounaise "Assobacam" and Compagnie Fruitière Import v Commission of the European Communities. - Bananas - Commission decision authorizing a Member State to take safeguard measures - Action for annulment - Inadmissibility. - Joined cases C-429/92 and C-25/93.



European Court reports 1993 Page I-03991



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Decision of the Commission authorizing a Member State to take safeguard measures ° Producers and importers of the product in question ° Inadmissibility

(EEC Treaty, Art. 173, second para.; Fourth ACP-EEC Convention signed at Lomé on 15 December 1989, Arts 177 and 178);

Summary

A Commission decision, taken under Articles 177 and 178 of the Fourth ACP-EEC Lomé Convention, addressed to a Member State and authorizing it to restrict, for a specified period, the importation into its territory of fresh bananas originating in certain non-member countries, which are parties to the Convention, constitutes, with regard to the traders engaged in the production and importation of those products, a measure of general application which applies to situations determined objectively and has legal effects with regard to categories of persons referred to in general and abstract terms. It does not affect them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguish them individually just as in the case of the person addressed, and it is not therefore of individual concern to them within the meaning of the second paragraph of Article 173 of the Treaty.

Parties

In Joined Cases C-429/92 and C-25/93,

Association Bananière Camerounaise "Assobacam" and Compagnie Fruitière Import SA, represented by D. Larcena, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Fernand Entringer, 34A Rue Philippe II,

applicant,

v

Commission of the European Communities, represented by E. Lasnet, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of N. Anecchino, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

French Republic, represented by P. Pouzoulet, Deputy Director in the Directorate of Legal Affairs at the Ministry of Foreign Affairs, and C. De Salins, Adviser on Foreign Affairs at the same ministry, with an address for service in Luxembourg at the French Embassy, 9 Boulevard du Prince Henri,

intervener,

APPLICATION for the annulment of the Commission Decision of 2 December 1992 authorizing the French Republic to apply safeguard measures to the importation of bananas originating in the Republic of Cameroon and Côte d' Ivoire (OJ 1992 L 355, p. 37),

THE COURT,

composed of: O. Due, President, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Zuleeg, J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco, P.J.G. Kapteyn and D.A.O. Edward, Judges,

Advocate General: W. Van Gerven,

Registrar: J.-G. Giraud,

after hearing the Opinion of the Advocate General,

makes the following

Order

Grounds

1 By applications lodged at the Court Registry on 23 December 1992 and 29 January 1993, the Association Bananière Camerounaise "Assobacam", whose registered office is in Douala (Cameroon) and the Compagnie Fruitière Import, whose registered office is in Marseille (France), brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of Commission Decision 92/554/EEC of 2 December 1992 authorizing the French Republic to apply safeguard measures to the importation of bananas originating in the Republic of Cameroon and Côte d' Ivoire (OJ 1992 L 355, p. 37).

2 In accordance with Articles 177(1) and 178(3) of the Fourth ACP-EEC Convention signed at Lomé on 15 December 1989 (OJ 1991, L 229, p. 1), the Community may take or authorize the Member States to take certain safeguard measures subject, as regards substance and procedure, to special requirements.

3 On 29 November 1992, the French Government requested the Commission to authorize it to take the safeguard measures provided for by the abovementioned provisions for the purpose of restricting the importation of bananas originating in Cameroon and Côte d' Ivoire.

4 By decision of 2 December 1992, the Commission authorized the French Republic to restrict, during December 1992, the importation into its territory of fresh bananas covered by NC Code ex-08030010 originating in Cameroon and Côte d' Ivoire to the level corresponding to the quantities which had been imported from those countries during December for the last three years.

5 Taking the view that that decision was unlawful, the Association Bananière Camerounaise "Assobacam", which brings together banana producers in Cameroon, the applicant in Case C-429/92, and Compagnie Fruitière Import, the applicant in Case C-25/93, which is responsible for marketing the banana production of three Cameroon producers ("the applicants") in France and Europe, instituted these proceedings.

6 The Commission raised an objection of inadmissibility against those actions in accordance with the first paragraph of Article 91(1) of the Rules of Procedure.

7 By order of 23 March 1993, the President of the Court ordered Cases C-429/92 and C-25/93 to be joined for the purposes of the written and oral procedure and the judgment.

8 By order of 25 March 1993, the President of the Court granted the French Republic leave to intervene in support of the form of order sought by the Commission.

9 The Commission disputes the admissibility of the actions pleading, in particular, that the applicants are not individually concerned, within the meaning of the second paragraph of Article 173 of the Treaty, by the contested decision which constitutes a measure of general and abstract application. Nor are the applicants directly concerned by that decision which does not give rise to any obligation as regards the French Republic, but merely authorizes it to restrict the importation of bananas originating in Cameroon and Côte d' Ivoire, leaving it at liberty to decide whether or not to rely on that authorization.

10 The applicants argue, on the other hand, that the contested decision is not a measure of general and abstract application. It only affects banana producers from Cameroon and Côte d' Ivoire. In their view, all the banana producers from Cameroon and Côte d' Ivoire, namely a specified group of legal persons whose number and identity may be accurately and easily defined, were directly and individually concerned by the contested decision which may be analysed as a set or series of individual decisions.

11 Pursuant to Article 91(3) of the Rules of Procedure, in the event of an application being made in accordance with paragraph 1 of that article, the remainder of the proceedings concerning that application are to be oral, unless the Court decides otherwise.

12 Since the documents before the Court contain all the information needed for it to make a decision, the Court has decided to give judgment without initiating the oral procedure.

13 Under the second paragraph of Article 173 of the Treaty, the admissibility of an action for annulment of a decision brought by an individual to whom it is not addressed is subject to the condition that the decision is of direct and individual concern to that person.

14 Since the contested decision is not addressed to the applicants, it is necessary to examine whether it is of direct and individual concern to them.

15 It follows from the case-law of the Court that third parties may be individually concerned by a decision addressed to another person only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (see, in particular, the judgment in Case 206/87 Lefebre v Commission [1989] ECR 275; the order in Case 191/88 Co-Frutta v Commission [1989] ECR 793).

16 However, it is common ground that the contested decision is intended to authorize the French Republic to restrict, for a specified period, the importation of fresh bananas originating in Cameroon and Côte d' Ivoire. With regard to importers, producers and ripeners of bananas, it constitutes a measure of general application which applies to situations determined objectively and has legal effects with regard to categories of persons referred to in general and abstract terms.

17 It follows that the contested decision is of concern to the applicants only by reason of their objective attributes as traders engaged in the production and importation of bananas originating in Cameroon and Côte d' Ivoire on the same basis as any other trader who is in an identical position.

18 In those circumstances, the applications must be dismissed as inadmissible.

Decision on costs

Costs

19 Under article 69(2) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs. Since the applicants have failed in their submissions, they must be ordered to pay the costs. In accordance with the first subparagraph of Article 69(4) of the Rules of Procedure, the French Republic, the intervener, is to bear its own costs.

Operative part

On those grounds,

THE COURT

hereby orders:

1. The applications are dismissed as inadmissible.

2. The applicants are ordered to pay the costs.

3. The French Republic, the intervener, shall bear its own costs.

Luxembourg, 12 July 1993.