Order of the President of the Court of 23 May 1990. - Comos-Tank BV, Matex Nederland BV and Mobil Oil BV v Commission of the European Communities. - Common Customs Tariff - Measure concerning the classification of goods - Suspension of the operation of a measure. - Affaires C-51/90 R and C-59/90 R.



European Court reports 1990 Page I-02167



Summary

Parties

Grounds

Operative part



Keywords

++++

Application for interim measures - Suspension of operation - Interim measures - Conditions for granting - Serious and irreparable damage - Financial loss

( EEC Treaty, Arts 185 and 186; Rules of Procedure, Art . 83(2 ) )

Summary

The urgency of an application for suspension or other interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party seeking such measures . Financial loss is in principle not considered to be serious and irreparable unless, in the event of the applicant' s being successful in the main proceedings, it could not be wholly recouped . That may be so in particular if the damage threatens the very existence of the undertaking in question or where, once it had occurred, it could not be quantified .

Parties

In Case C-51/90 R

Comos-Tank BV and Matex Nederland BV, companies incorporated under Netherlands law whose registered offices are in Rotterdam and Amsterdam respectively, represented by B . H . ter Kuile, of the Hague Bar, and P . H . Wackie Eysten, of the Rotterdam Bar, with an address for service in Luxembourg at the Chambers of Jacques Loesch, 8, rue Zithe,

applicants,

v

Commission of the European Communities, represented by R . Barents, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

and in Case C-59/90 R

Mobil Oil BV, a company incorporated under Netherlands law, whose registered office is in Rotterdam, represented by A . J . Braakmann and P . Glazener, of the Rotterdam Bar, with an address for service in Luxembourg at the Chambers of Jacques Loesch, 8, rue Zithe,

applicant,

v

Commission of the European Communities, represented by R . Barents, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION, primarily, for the suspension of the operation of Commission Regulation ( EEC ) No 313/90 of 5 February 1990 on the classification of goods within code 27 10 00 69 of the combined nomenclature,

THE PRESIDENT OF THE COURT OF JUSTICE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Grounds

1 By application lodged at the Court Registry on 6 March 1990, Comos-Tank BV ( hereinafter referred to as "Comos ") and Matex Nederland BV ( hereinafter referred to as "Matex ") brought an action under Article 178 and the second paragraph of Article 215 of the EEC Treaty for compensation for the damage alleged to have been caused to them by the Commission as a result of the implementation of Commission Regulation ( EEC ) No 313/90 of 5 February 1990 on the classification of goods within code 27 10 00 69 of the combined nomenclature ( Official Journal 1990, L 35 p . 7 ).

2 By a separate document lodged at the Court Registry on the same day Comos and Matex also made an application for interim measures under Articles 185 and 186 of the EEC Treaty, the relief sought being primarily the suspension of the operation with regard to them of the aforementioned Regulation No 313/90 .

3 By application lodged at the Court Registry on 9 March 1990 Mobil Oil BV ( hereinafter referred to as "Mobil Oil ") brought an action under Article 178 and the second paragraph of Article 215 of the EEC Treaty for compensation for the damage allegedly caused to it by the Commission as a result of the implementation of the aforementioned Commission Regulation No 313/90 .

4 By a separate document lodged at the Court Registry on the same day Mobil Oil also made an application for interim measures under Articles 185 and 186 of the EEC Treaty, the relief sought being primarily the suspension of the operation with regard to it of the same regulation .

5 In the alternative, the three applicants claim in substance that the Court should order that the application of the regulation with regard to them should be confined to cases where the conditions mentioned therein are fully and jointly satisfied on the basis of objective criteria .

6 The Commission submitted written observations on the applications for interim measures on 30 March 1990 and the parties presented oral argument on 4 May 1990 .

7 The two applications for interim measures have the same subject-matter and are so related that it is proper to deal with them in one and the same order .

8 Before the merits of the two applications for interim measures are considered, a brief account should be given of the object sought by Commission Regulation No 313/90 and of the set of legislative measures of which it forms part .

9 The combined nomenclature, established by Council Regulation ( EEC ) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff ( Official Journal 1987, L 256, p . 1 ) distinguishes in Chapter 27, as regards gas oil, between gas oil for "undergoing a specific process" ( subheading 27 10 00 61 ), gas oil for undergoing chemical transformation ( subheading 27 10 00 65 ) and gas oil "for other purposes" ( subheading 27 10 00 69 ).

10 Under that same regulation no customs duty is payable on gas oil falling under subheading 27 10 00 61 - gas oil for undergoing "a specific process" - but a customs duty of 3.5% is applicable to gas oil falling under subheading 27 10 00 69 and intended for other purposes .

11 According to a note to the combined nomenclature, entry under subheading 27 10 00 61 is subject to conditions laid down in the relevant Community provisions and the Additional Notes to Chapter 27 specify at point 4 the operations which are covered by the term "specific process ". The 14 operations mentioned there include "vacuum distillation ".

12 Article 9(1 ) of Council Regulation No 2658/87 empowers the Commission to adopt, in accordance with the procedure therein provided for, measures relating to the application of the combined nomenclature as regards the classification of goods therein . Pursuant to that provision the Commission adopted on 5 February 1990 Regulation No 313/90 on the classification of goods within code 27 10 00 69 of the combined nomenclature .

13 The recitals in the preamble to that regulation refer to the fact that the structure and content of Chapter 27 indicate that an operation may be regarded as a "specific process", and thus give entitlement to exemption from customs duty, only if it appreciably changes the characteristics of the basic product . That is not so, according to the recitals, in the case of the vacuum distillation of gas oil which has a flashpoint equal to or above 55°C "with a view to increasing the flashpoint in order to ensure that the flashpoint of the finished product, resulting from transportation, after its entry into free circulation, in tanks which may be contaminated or following the addition of kerosene to increase its fluidity does not fall below 55°C which is the minimum generally required for marketing the product as a gas oil ". It is stated in the recitals that such a process does not appear justified either by technical or economic reasons since the basic imported product may be used as diesel fuel or as light heating fuel before as well as after the process .

14 Article 1 of the regulation therefore provides that a gas oil, having a flashpoint equal to or above 55°C for undergoing a process of vacuum distillation for the stated purpose must be classified under subheading 27 10 00 69 as "Gas oils : For other purposes ".

15 Regulation No 313/90 entered into force on 28 February 1990 .

16 According to Article 83(2 ) of the Rules of Procedure a decision ordering suspension of operation or other interim measures may be made only if there are circumstances giving rise to urgency and factual and legal grounds establishing a prima-facie case for the interim measures applied for .

17 The Court has consistently held that the urgency of an application for suspension or other interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party seeking such measures .

18 It is necessary to consider first of all whether the condition relating to urgency is satisfied .

19 Comos and Matex are storage undertakings which import and store, amongst others, petroleum products for and on behalf of their customers . Each of the two undertakings has a vacuum distillation plant .

20 Mobil Oil, the Netherlands subsidiary of a multinational company, exploits and uses an old refinery which belongs to its storage undertaking . That undertaking imports and stores, amongst others, petroleum products on its own account or for and on behalf of customers . It also has a vacuum distillation plant .

21 The three applicants state that for many years they have imported, amongst other products, gas oil from non-member countries, especially the Soviet Union . Until now, by subjecting gas oil to a process justifying its entry under subheading 27 10 00 61 they have been able to import it for their customers without the latter having to pay customs duties . Until 31 December 1989 the Netherlands authorities recognized that the stabilization process which the applicants were able to carry out in their plant satisfied the conditions required by the Community legislation in order for it to be regarded as a "specific process" justifying entry under subheading 27 10 00 61 . Since the process is no longer recognized, they have been unable to import gas oil under subheading 27 10 00 61 except by subjecting it to vacuum distillation .

22 They state furthermore that, since they are storage undertakings, their plant is not equipped for subjecting the gas oil to any "specific process" other than vacuum distillation and that in relation to the importation of gas oil they are in competition with the refineries which are equipped to carry out several of the 14 "specific processes" justifying entry under subheading 27 10 00 61 . The imported gas oil is from the qualitative point of view so homogeneous that whether it has been subjected to one or other of those technical processes is a matter of no importance to the consumer .

23 The applicants claim, finally, that as a result of the implementation of Commission Regulation No 313/90 they are no longer able to import gas oil for their customers without payment of customs duty at 3.5 %. The customers for whom the applicants habitually import gas oil from non-member countries are in consequence turning to the refineries which are still able to import without payment of duty . As a result they are at one and the same time losing the investments they have made in their vacuum distillation plant, the share of their turnover relating to such imports and their share of the relevant market . The latter damage is difficult to make good by reason of the particular features of the market and in particular the existence of long-term contracts .

24 In that respect the Court of Justice has held ( see in particular the order of the President of the Court of Justice of 26 September 1988 in Case 229/88 R Cargill v Commission (( 1988 )) ECR 5183 ) that damage of a financial nature is not in principle considered to be serious and irreparable unless, in the event of the applicants' being successful in the main action, it could not be wholly recouped . That may be so in particular if the alleged damage threatens the very existence of the undertaking in question or if the damage, even when it occurs, cannot be quantified . It is therefore necessary to consider whether the damage or risk of damage which each of the applicants alleges is of a serious nature and furthermore whether it must be regarded as irreparable in the sense indicated above .

25 As regards its damage, Mobil Oil claims that since 1985 it has invested HFL 940 000 in a vacuum distillation plant and that the loss of the gas oil import market on behalf of third parties represents a loss of revenue estimated at HFL 2 000 000 per annum . The unit used as a storage undertaking would as a result operate at a loss .

26 It is sufficient to note, so far as this applicant is concerned, that according to the particulars which it has supplied its annual turnover amounts to HFL 750 000 000 and that accordingly the losses which it claims cannot be regarded as sufficiently serious to justify the grant of interim measures .

27 So far as its damage is concerned, Comos claims that it invested HFL 2 000 000 in a vacuum distillation plant which it put into operation in 1989 . It adds that in 1989 the importation of gas oil from non-member countries represented HFL 1 750 000 against a total turnover of HFL 25 600 000 and that on a total turnover estimated at HFL 27 000 000 for 1990 it risks losing HFL 3 200 000, which corresponds to the part relating to the importation of gas oil for vacuum distillation .

28 At the hearing it became apparent that even after the entry into force of Regulation No 313/90 imports of gas oil by Comos for vacuum distillation have not fallen significantly in relation to the abovementioned estimates . Comos considers, however, that it is faced with the imminent risk of losing those imports as a result of the uncertainty as regards the application of the conditions which under that regulation govern the recognition of vacuum distillation as a "specific process ".

29 Comos does not, therefore, seem to have suffered up to now any damage as a result of the implementation of Commission Regulation No 313/90 and it has also not established the imminence of such damage with the degree of probability required for the grant of interim measures .

30 Matex, claims, so far as its damage is concerned, that it has invested some HFL 2 500 000 in a vacuum distillation plant which was put into operation on 15 December 1989 . It further claims that since the entry into force of Commission Regulation No 313/90 it has lost practically all the customers for whom it habitually imported gas oil and that its loss for 1990 would be in the order of HFL 3 500 000 to HFL 5 500 000 out of a total turnover estimated at HFL 157 500 000 . That loss, according to Matex, represents the share of the market which it held for the importation and storage of gas oil from the Soviet Union, namely 9% of the Netherlands market, which represents 6.8% of the Community market .

31 Although for an undertaking of the size of Matex such losses could constitute serious damage, it has not been established that they could not be fully recovered if Matex were successful in the main proceedings . First, it has not been alleged, and still less established, that they threaten the existence of Matex . Secondly, whilst what is concerned is the loss of a share of the market which would be difficult to recover, there is nothing to suggest that such a loss could not be quantified . The damage alleged by Matex cannot therefore be regarded as irreparable .

32 Since the condition relating to urgency is not satisfied in the case of any one of the applicants, it is not necessary to consider the other conditions for the grant of interim measures .

33 For the same reason it can also be left open whether an application for the suspension of the operation of a measure is admissible where it is made by a party which has brought an action solely for compensation for the damage which it claims to be suffering as a result of the application of the measure in question and whether the Court may have jurisdiction to order, by way of an interim measure, the national authorities to apply a Community regulation in a particular manner, questions which, moreover, the parties have not raised .

Operative part

On those grounds,

The President

hereby orders :

( 1 ) The applications for interim measures are dismissed .

( 2 ) Costs are reserved .

Luxembourg, 23 May 1990 .