Order of the President of the Court of First Instance of 30 April 1999. - Emesa Sugar (Free Zone) NV v Commission of the European Communities. - Association of the overseas countries and territories - Decisions 91/482/EEC and 97/803/EC - Regulation (EC) No 2553/97 - Procedure for interim measures - Prima facie case - Urgency - Balancing of interests. - Case T-44/98 R II.



European Court reports 1999 Page II-01427



Summary



Keywords

1 Association of the overseas countries and territories - Implementation by the Council - Account to be taken both of experience acquired and of Treaty principles - Scope - The objective of development of the overseas countries to be reconciled with the common agricultural policy - Measure restricting trade between those countries and territories and the Community - Whether permissible - Conditions

(EC Treaty, Arts 132 and 136, second para.; Council Decision 91/482, Arts 108b and 109)

2 Applications for interim measures - Suspension of operation of a measure - Interim measures - Conditions for granting - Serious and irreparable damage - Meaning - Risk of bankruptcy

(EC Treaty, Arts 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(2))

3 Applications for interim measures - Suspension of operation of a measure - Interim measures - Conditions for granting - Balancing of all the interests at stake

(EC Treaty, Arts 185 and 186)

Summary

1 Association of the overseas countries and territories (OCTs) with the Community is to be achieved by a dynamic and progressive process which may necessitate the adoption of a number of measures in order to attain all the objectives mentioned in Article 132 of the Treaty, having regard to the experience acquired through the Council's previous decisions. Accordingly, the second paragraph of Article 136 authorises the Council to adopt decisions concerning the association on the basis of the principles set out in the Treaty.

The experience acquired as a result of previous decisions taken by the Council must be assessed as a whole, that is to say, taking account of every aspect of the economic and social development of the OCTs as a whole. Consequently, it cannot be complained that the Council failed to assess any particular experience acquired, such as that of the arrangements for free access for an OCT-origin product to the Community market, irrespective of other experience.

The Council's obligation to lay down such provisions on the basis of the principles of the Treaty must be construed as requiring the Council to take account, not only of the principles in Part Four of the Treaty, but also of the other principles laid down in the Treaty, including those relating to the common agricultural policy. That obligation means that the Council may, where appropriate, take the measures necessary to prevent the aim of the development of the OCTs from conflicting with the objective of the common agricultural policy. Since promotion of the OCTs does not entail an obligation to give them preferential treatment, reconciling the objective of the development of the OCTs with the common agricultural policy may justify the adoption by the Council of a measure restricting trade between the OCTs and the Community. However, such a measure, whether of a specific, short-term nature for the purposes of Article 109 of Decision 91/482 or of a structural, permanent nature for the purposes of Article 108b thereof, must in any event be necessary and proportionate to the objective pursued.

2 The urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for those measures. It is for the party seeking suspension of the operation of a contested decision to prove that it cannot wait for the outcome of the main proceedings without suffering damage that would entail serious and irreparable consequences.

It must be acknowledged that there is indeed a risk of such damage in cases where the measures at issue have compelled the applicant to cease operations completely and the applicant is in a financial situation threatening its very existence because there is a real risk of being declared insolvent.

3 The court hearing an application for interim measures must balance the interests at stake. The comparison to be made in that context necessarily requires consideration of the question whether annulment of the contested act would make it possible to reverse the situation that would be brought about by the immediate implementation of that act and, conversely, of the question whether suspension of the operation of the act would be such as to prevent it from being fully effective should the main application be dismissed.