Judgment of the Court (First Chamber) of 17 January 1985. - SA Piraiki-Patraiki and others v Commission of the European Communities. - Protective measures - Cotton yarn from Greece. - Case 11/82.



European Court reports 1985 Page 00207



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . ANNULMENT OF MEASURES - NATURAL OR LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO THEM - COMMISSION DECISION AUTHORIZING A MEMBER STATE TO TAKE PROTECTIVE MEASURES - DECISION LIKELY TO BE OF DIRECT AND INDIVIDUAL CONCERN TO CERTAIN EXPORTERS BY REASON OF CONTRACTS PREVIOUSLY ENTERED INTO

( EEC TREATY , ART . 173 , SECOND PARAGRAPH ; ACT OF ACCESSION OF THE HELLENIC REPUBLIC , ART . 130 )

2 . ACCESSION OF NEW MEMBER STATES TO THE COMMUNITIES - HELLENIC REPUBLIC - FREE MOVEMENT OF GOODS - DEROGATIONS - STRICT INTERPRETATION - OBLIGATIONS OF THE COMMISSION

( ACT OF ACCESSION OF THE HELLENIC REPUBLIC , ART . 130 )

3 . ACCESSION OF NEW MEMBER STATES TO THE COMMUNITIES - HELLENIC REPUBLIC - PROTECTIVE MEASURES - DISCRETION OF THE COMMISSION

( ACT OF ACCESSION OF THE HELLENIC REPUBLIC , ART . 130 )

Summary

1 . A COMMISSION DECISION UNDER ARTICLE 130 OF THE ACT OF ACCESSION OF THE HELLENIC REPUBLIC ADDRESSED TO A MEMBER STATE AND AUTHORIZING IT TO IMPOSE A SYSTEM OF QUOTAS ON IMPORTS FROM GREECE MAY BE OF DIRECT CONCERN TO GREEK EXPORTERS WHERE THERE CAN BE NO DOUBT AS TO THE INTENTION OF THE AUTHORITIES OF THE MEMBER STATE GRANTED THE AUTHORIZATION TO AVAIL THEMSELVES OF IT .

THOSE EXPORTERS WHO , AT THE TIME WHEN THE DECISION WAS ADOPTED , WERE PARTY TO CONTRACTS FOR THE SALE OF THE PRODUCT IN QUESTION TO THE MEMBER STATE GRANTED THE AUTHORIZATION , TO BE PERFORMED DURING ITS PERIOD OF APPLICATION , MAY BE REGARDED AS INDIVIDUALLY CONCERNED , AS MEMBERS OF A LIMITED GROUP OF TRADERS IDENTIFIED OR IDENTIFIABLE BY THE COMMISSION , HAVING REGARD TO THE REQUIREMENTS IN RELATION TO PRELIMINARY ENQUIRIES OF ARTICLE 130 ( 3 ), AND PARTICULARLY AFFECTED BY THE DECISION AT ISSUE .

2 . A PROVISION SUCH AS ARTICLE 130 OF THE ACT OF ACCESSION OF THE HELLENIC REPUBLIC WHICH PERMITS THE AUTHORIZATION OF PROTECTIVE MEASURES WITH REGARD TO A MEMBER STATE WHICH DEROGATE , EVEN TEMPORARILY AND IN RESPECT OF CERTAIN PRODUCTS ONLY , FROM THE RULES RELATING TO THE FREE MOVEMENT OF GOODS MUST , LIKE ANY PROVISION OF THAT NATURE , BE INTERPRETED STRICTLY .

IN ORDER TO ASCERTAIN WHETHER THE MEASURE WHOSE AUTHORIZATION IS BEING CONSIDERED MEETS THE CONDITIONS LAID DOWN IN ARTICLE 130 ( 3 ) THE COMMISSION MUST ALSO TAKE INTO ACCOUNT THE SITUATION IN THE MEMBER STATE WITH REGARD TO WHICH THE PROTECTIVE MEASURE IS REQUESTED , AND MUST IN PARTICULAR , IN SO FAR AS THE CIRCUMSTANCES OF THE CASE PERMIT , INQUIRE INTO THE NEGATIVE EFFECTS WHICH ITS DECISION MIGHT HAVE ON THE ECONOMY OF THAT MEMBER STATE AS WELL AS ON THE UNDERTAKINGS CONCERNED .

3 . IN THE APPLICATION OF ARTICLE 130 OF THE ACT OF ACCESSION OF THE HELLENIC REPUBLIC THE COMMISSION HAS A WIDE DISCRETION IN DETERMINING WHETHER THE CONDITIONS JUSTIFYING THE ADOPTION OF A PROTECTIVE MEASURE ARE PRESENT . ALTHOUGH THAT ARTICLE LAYS DOWN TWO DISTINCT CONDITIONS UNDER WHICH THE COMMISSION MAY AUTHORIZE A PROTECTIVE MEASURE REQUESTED BY A MEMBER STATE , IT IS QUITE ENTITLED TO TAKE INTO ACCOUNT IN A GENERAL MANNER FACTORS RELATING TO ONE OR THE OTHER OF THOSE CONDITIONS IN ORDER TO ARRIVE AT THE CONCLUSION THAT THE REQUEST IS JUSTIFIED .

Parties

IN CASE 11/82

A.E . PIRAIKI-PATRAIKI , COTTON INDUSTRY ,

A.E . VOLOS COTTON MANUFACTURING COMPANY ,

A.E . MAKEDONIKA KLOSTIRIA ,

A.E . KLOSTIRIA PREVEZIS ,

A.E . VOMVYX P . V . SVOLOPOULOS AND CHR . KOUTROUBIS ,

A.E . KLOSTIRIA NAOUSSIS ,

A.E . UNICOT HELLAS , COTTON INDUSTRY ,

HAVING THEIR REGISTERED OFFICES IN ATHENS , ASSISTED AND REPRESENTED BY D . EVRIGENIS , OF THE THESSALONIKI BAR , AND G . VANDERSANDEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JANINE BIVER , 2 RUE GOETHE ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , MICHEL VAN ACKERE , AND BY XENOPHON YATAGANAS , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

SUPPORTED BY

THE GOVERNMENT OF THE FRENCH REPUBLIC , REPRESENTED BY NOEL MUSEUX , ACTING AS AGENT , AND BY ALEXANDRE CARNELUTTI , ACTING AS DEPUTY AGENT ,

INTERVENER ,

Subject of the case

APPLICATION FOR A DECLARATION THAT COMMISSION DECISION NO 81/988/EEC OF 30 OCTOBER 1981 ( OFFICIAL JOURNAL L 362 , P . 33 ) AUTHORIZING THE FRENCH REPUBLIC TO TAKE PROTECTIVE MEASURES WITH REGARD TO IMPORTS OF COTTON YARN FROM GREECE , AS PROVIDED FOR IN ARTICLE 130 OF THE ACT OF ACCESSION OF GREECE TO THE EUROPEAN COMMUNITIES , IS VOID ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 8 JANUARY 1982 , SEVEN GREEK COTTON UNDERTAKINGS BROUGHT AN ACTION PURSUANT TO ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION DECISION NO 81/988/EEC OF 30 OCTOBER 1981 ( OFFICIAL JOURNAL L 362 , P . 33 ), IS VOID . THAT DECISION , ADOPTED PURSUANT TO ARTICLE 130 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE HELLENIC REPUBLIC AND THE ADJUSTMENTS TO THE TREATIES ( HEREINAFTER REFERRED TO AS ' THE ACT OF ACCESSION ' ), AUTHORIZES THE FRENCH REPUBLIC TO IMPOSE A QUOTA SYSTEM ON IMPORTS INTO FRANCE OF COTTON YARN FROM GREECE DURING THE MONTHS OF NOVEMBER AND DECEMBER 1981 AND JANUARY 1982 .

2 BY A DOCUMENT DATED 12 FEBRUARY 1982 THE COMMISSION RAISED AN OBJECTION OF INADMISSIBILITY PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE ; THE GOVERNMENT OF THE FRENCH REPUBLIC , INTERVENING , JOINED IN THAT OBJECTION .

3 THE COMMISSION AND THE GOVERNMENT OF THE FRENCH REPUBLIC POINT OUT THAT THE DECISION IN QUESTION IS ADDRESSED TO THE FRENCH REPUBLIC AND THE HELLENIC REPUBLIC . THEY ARGUE THAT IT IS AN ECONOMIC DECISION OF A GENERAL NATURE , AFFECTING A WHOLE SECTOR OF THE ECONOMY RATHER THAN INDIVIDUALS . ALTHOUGH THE APPLICANTS ARE TOUCHED BY THE EFFECTS OF THE PROTECTIVE MEASURES AUTHORIZED , THE DECISION IN QUESTION IS NOT OF DIRECT OR INDIVIDUAL CONCERN TO THEM .

4 ACCORDING TO THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY , ANY NATURAL OR LEGAL PERSON MAY , UNDER THE CONDITIONS LAID DOWN IN THE FIRST PARAGRAPH OF THAT ARTICLE , INSTITUTE PROCEEDINGS AGAINST A DECISION ADDRESSED TO THAT PERSON OR AGAINST A DECISION WHICH , ALTHOUGH IN THE FORM OF A REGULATION OR A DECISION ADDRESSED TO ANOTHER PERSON , IS OF DIRECT AND INDIVIDUAL CONCERN TO THE FORMER .

5 IT IS COMMON GROUND THAT IN THIS CASE THE CONTESTED DECISION IS NOT ADDRESSED TO THE APPLICANTS . IT IS THEREFORE NECESSARY , WITHOUT GOING INTO THE LEGAL NATURE OF THE DECISION , TO CONSIDER WHETHER THE DECISION IS NEVERTHELESS OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS .

6 WITH REGARD TO THE QUESTION OF DIRECT CONCERN , THE COMMISSION AND THE GOVERNMENT OF THE FRENCH REPUBLIC ARGUE THAT THE APPLICANTS ARE NOT DIRECTLY AFFECTED BY THE DECISION AT ISSUE SINCE THAT DECISION MERELY AUTHORIZES THE FRENCH REPUBLIC TO INSTITUTE A QUOTA SYTEM ON IMPORTS OF COTTON YARN FROM GREECE , AND THUS LEAVES THE MEMBER STATE WHICH REQUESTED THE AUTHORIZATION FREE TO MAKE USE OF IT OR NOT . THE DECISION THEREFORE DOES NOT ITSELF ESTABLISH A SYSTEM LIMITING IMPORTS BUT , IN ORDER FOR IT TO HAVE PRACTICAL EFFECT , REQUIRES IMPLEMENTING MEASURES ON THE PART OF THE FRENCH AUTHORITIES .

7 IT IS TRUE THAT WITHOUT IMPLEMENTING MEASURES ADOPTED AT THE NATIONAL LEVEL THE COMMISSION DECISION COULD NOT HAVE AFFECTED THE APPLICANTS . IN THIS CASE , HOWEVER , THAT FACT DOES NOT IN ITSELF PREVENT THE DECISION FROM BEING OF DIRECT CONCERN TO THE APPLICANTS IF OTHER FACTORS JUSTIFY THE CONCLUSION THAT THEY HAVE A DIRECT INTEREST IN BRINGING THE ACTION .

8 IN THAT RESPECT IT SHOULD BE POINTED OUT THAT , AS THE COMMISSION ITSELF ADMITTED DURING THE WRITTEN PROCEDURE , EVEN BEFORE BEING AUTHORIZED TO DO SO BY THE COMMISSION THE FRENCH REPUBLIC APPLIED A VERY RESTRICTIVE SYSTEM OF LICENCES FOR IMPORTS OF COTTON YARN OF GREEK ORIGIN . IT SHOULD MOREOVER BE OBSERVED THAT THE REQUEST FOR PROTECTIVE MEASURES NOT ONLY CAME FROM THE FRENCH AUTHORITIES BUT SOUGHT TO OBTAIN THE COMMISSION ' S AUTHORIZATION FOR A SYSTEM OF IMPORT QUOTAS MORE STRICT THAN THAT WHICH WAS FINALLY GRANTED .

9 IN THOSE CIRCUMSTANCE THE POSSIBILITY THAT THE FRENCH REPUBLIC MIGHT DECIDE NOT TO MAKE USE OF THE AUTHORIZATION GRANTED TO IT BY THE COMMISSION DECISION WAS ENTIRELY THEORETICAL , SINCE THERE COULD BE NO DOUBT AS TO THE INTENTION OF THE FRENCH AUTHORITIES TO APPLY THE DECISION .

10 IT MUST THEREFORE BE ACCEPTED THAT THE DECISION AT ISSUE WAS OF DIRECT CONCERN TO THE APPLICANTS .

11 WITH REGARD TO THE QUESTION WHETHER THE APPLICANTS ARE ALSO INDIVIDUALLY CONCERNED , IT SHOULD FIRST BE POINTED OUT , AS THE COURT STATED IN ITS JUDGMENT OF 15 JULY 1963 ( CASE 25/62 , PLAUMANN , ( 1963 ) ECR 95 ), THAT ' PERSONS OTHER THAN THOSE TO WHOM A DECISION IS ADDRESSED MAY ONLY CLAIM TO BE INDIVIDUALLY CONCERNED 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 ' .

12 THE APPLICANTS ARGUE THAT THEY FULFIL THE CONDITIONS SET OUT ABOVE SINCE THEY ARE THE MAIN GREEK UNDERTAKINGS WHICH PRODUCE AND EXPORT COTTON YARN TO FRANCE . THEY ARGUE THAT THEY THEREFORE BELONG TO A CLASS OF TRADERS INDIVIDUALLY IDENTIFIABLE ON THE BASIS OF CRITERIA HAVING TO DO WITH THE PRODUCT IN QUESTION , THE BUSINESS ACTIVITIES CARRIED ON AND THE LENGTH OF TIME DURING WHICH THEY HAVE BEEN CARRIED ON . IN THAT REGARD THE APPLICANTS EMPHASIZE THAT THE PRODUCTION AND EXPORT TO FRANCE OF COTTON YARN OF GREEK ORIGIN REQUIRES AN INDUSTRIAL AND COMMERCIAL ORGANIZATION WHICH CANNOT BE ESTABLISHED FROM ONE DAY TO THE NEXT , AND CERTAINLY NOT DURING THE SHORT PERIOD OF APPLICATION OF THE DECISION IN QUESTION .

13 THAT PROPOSITION CANNOT BE ACCEPTED . IT MUST FIRST BE POINTED OUT THAT THE APPLICANTS ARE AFFECTED BY THE DECISION AT ISSUE ONLY IN THEIR CAPACITY AS EXPORTERS TO FRANCE OF COTTON YARN OF GREEK ORIGIN . THE DECISION IS NOT INTENDED TO LIMIT THE PRODUCTION OF THOSE PRODUCTS IN ANY WAY , NOR DOES IT HAVE SUCH A RESULT .

14 AS FOR THE EXPORTATION OF THOSE PRODUCTS TO FRANCE , THAT IS CLEARLY A COMMERCIAL ACTIVITY WHICH CAN BE CARRIED ON AT ANY TIME BY ANY UNDERTAKING WHATEVER . IT FOLLOWS THAT THE DECISION AT ISSUE CONCERNS THE APPLICANTS IN THE SAME WAY AS ANY OTHER TRADER ACTUALLY OR POTENTIALLY FINDING HIMSELF IN THE SAME POSITION . THE MERE FACT THAT THE APPLICANTS EXPORT GOODS TO FRANCE IS NOT THEREFORE SUFFICIENT TO ESTABLISH THAT THEY ARE INDIVIDUALLY CONCERNED BY THE CONTESTED DECISION .

15 THE APPLICANTS ARGUE HOWEVER THAT THEIR SITUATION MAY BE DISTINGUISHED FROM THAT OF ANY OTHER EXPORTER TO FRANCE OF COTTON YARN OF GREEK ORIGIN INASMUCH AS THEY HAD ENTERED INTO A SERIES OF CONTRACTS OF SALE WITH FRENCH CUSTOMERS , TO BE PERFORMED DURING THE PERIOD OF APPLICATION OF THE DECISION AND COVERING QUANTITIES OF COTTON YARN IN EXCESS OF THE QUOTAS AUTHORIZED BY THE COMMISSION . THE APPLICANTS STATE THAT THOSE CONTRACTS COULD NOT BE CARRIED OUT BECAUSE OF THE QUOTA SYSTEM APPLIED BY THE FRENCH AUTHORITIES . THEY TAKE THE VIEW THAT IN THOSE CIRCUMSTANCES THEIR INDIVIDUAL INTERESTS WERE AFFECTED BY THE DECISION IN QUESTION .

16 ACCORDING TO THE APPLICANTS THE COMMISSION WAS IN A POSITION , AND EVEN UNDER AN OBLIGATION , TO IDENTIFY THE TRADERS WHO , LIKE THE APPLICANTS , WERE INDIVIDUALLY CONCERNED BY ITS DECISION . IN FAILING TO OBTAIN INFORMATION IN THAT REGARD IT DID NOT COMPLY WITH THE CONDITIONS OF APPLICATION OF ARTICLE 130 OF THE ACT OF ACCESSION , SINCE IN THE APPLICANTS ' VIEW THAT PROVISION OBLIGES THE COMMISSION , BEFORE MAKING A DECISION , TO ASCERTAIN WHICH TRADERS , IN THIS CASE GREEK TRADERS , WOULD BE INDIVIDUALLY CONCERNED BY THE PROTECTIVE MEASURES AUTHORIZED .

17 IT SHOULD FIRST BE OBSERVED THAT IF THAT ARGUMENT WERE HELD TO BE WELL FOUNDED , IT WOULD ONLY AVAIL THOSE APPLICANTS WHO COULD SHOW THAT BEFORE THE DATE OF THE CONTESTED DECISION THEY HAD ENTERED INTO CONTRACTS WITH FRENCH CUSTOMERS FOR THE DELIVERY OF COTTON YARN FROM GREECE DURING THE PERIOD OF APPLICATION OF THAT DECISION .

18 SINCE NEITHER VOMVYX P.V . SVOLOPOULOS AND CHR . KOUTROUBIS A.E . NOR UNICOT HELLAS A.E . PROVIDED EVIDENCE IN THAT RESPECT , THE APPLICATION MUST BE DECLARED INADMISSIBLE IN SO FAR AS THEY ARE CONCERNED .

19 WITH REGARD TO THE OTHER APPLICANTS , IT MUST BE HELD THAT THE FACT THAT , BEFORE THE ADOPTION OF THE DECISION AT ISSUE , THEY HAD ENTERED INTO CONTRACTS WHICH WERE TO BE CARRIED OUT DURING THE MONTHS TO WHICH THE DECISION APPLIED CONSTITUES A CIRCUMSTANCE WHICH DISTINGUISHES THEM FROM ANY OTHER PERSON CONCERNED BY THE DECISION , IN SO FAR AS THE EXECUTION OF THEIR CONTRACTS WAS WHOLLY OR PARTLY PREVENTED BY THE ADOPTION OF THE DECISION .

20 THE COMMISSION , HOWEVER , CHALLENGES THE ASSERTION THAT THAT CIRCUMSTANCE IS SUFFICIENT IN ITSELF FOR THE APPLICANTS TO BE REGARDED AS INDIVIDUALLY CONCERNED . IT ARGUES THAT IN ANY EVENT WHEN IT ADOPTED THE DECISION IT WAS UNAWARE OF THE NUMBER OF CONTRACTS ALREADY ENTERED INTO FOR THE PERIOD COVERED BY THAT DECISION AND THAT , IN CONTRAST TO THE CASES CONSIDERED IN PREVIOUS DECISIONS OF THE COURT , IT HAD NO WAY OF OBTAINING INFORMATION IN THAT REGARD , SINCE THE CONTRACTS IN QUESTION WERE GOVERNED BY PRIVATE LAW AND THERE WAS NO OBLIGATION TO DECLARE THEM TO COMMUNITY OR NATIONAL AUTHORITIES .

21 IN THAT RESPECT IT MUST BE OBSERVED THAT THE REPLY TO BE GIVEN TO THE QUESTION WHETHER AND TO WHAT EXTENT THE COMMISSION WAS AWARE , OR COULD HAVE MADE ITSELF AWARE , WHICH GREEK EXPORTERS HAD ENTERED INTO CONTRACTS COVERING THE PERIOD OF APPLICATION OF THE CONTESTED DECISION DEPENDS ON THE INTERPRETATION GIVEN TO ARTICLE 130 OF THE ACT OF ACCESSION , AND IN PARTICULAR ON THE QUESTION WHETHER THE COMMISSION , BEFORE AUTHORIZING A PROTECTIVE MEASURE UNDER THAT PROVISION , IS OBLIGED TO MAKE APPROPRIATE ENQUIRIES AS TO THE ECONOMIC EFFECTS OF THE DECISION TO BE TAKEN AND THE UNDERTAKINGS WHICH WOULD BE AFFECTED BY IT . SINCE ARGUMENTS RELATED TO THAT PROBLEM WERE RAISED IN SUPPORT OF THE ASSERTION THAT THE DECISION AT ISSUE IS UNLAWFUL , THE ADMISSIBILITY OF THE APPLICATION FROM THAT POINT OF VIEW MUST BE CONSIDERED IN CONJUNCTION WITH THE SUBSTANCE OF THE CASE .

22 THE APPLICANTS ARGUE FIRST THAT IN THE ADOPTION OF THE CONTESTED DECISION THE CONDITIONS LAID DOWN IN ARTICLE 130 OF THE ACT OF ACCESSION WERE NOT MET . IN THAT REGARD THE APPLICANTS MAKE THREE DISTINCT SUBMISSIONS . IN THE FIRST PLACE THEY MAINTAIN THAT THE PRODUCT COVERED BY THE DECISION AT ISSUE DOES NOT CONSTITUTE A ' SECTOR OF THE ECONOMY ' AS ENVISAGED BY ARTICLE 130 . IN THEIR SECOND SUBMISSION THEY ARGUE THAT THE SECTORAL OR REGIONAL DIFFICULTIES REFERRED TO IN THAT ARTICLE DID NOT EXIST IN THIS CASE . IN THEIR THIRD SUBMISSION THEY ASSERT THAT THE CONTENT OF THE DECISION IN QUESTION WAS NOT RESTRICTED TO THE MEASURES STRICTLY NECESSARY , CONTRARY TO ARTICLE 130 ( 3 ).

23 TAKING INTO ACCOUNT WHAT HAS ALREADY BEEN SAID WITH REGARD TO THE ADMISSIBILITY OF THE ACTION , THIS LAST SUBMISSION SHOULD BE CONSIDERED FIRST .

24 IT SHOULD BE BORNE IN MIND IN THIS REGARD THAT UNDER ARTICLE 130 ( 1 ) OF THE ACT OF ACCESSION A MEMBER STATE MAY APPLY FOR AUTHORIZATION TO TAKE PROTECTIVE MEASURES WITH REGARD TO THE HELLENIC REPUBLIC ' IF . . . DIFFICULTIES ARISE WHICH ARE SERIOUS AND LIABLE TO PERSIST IN ANY SECTOR OF THE ECONOMY OR WHICH COULD BRING ABOUT SERIOUS DETERIORATION IN THE ECONOMIC SITUATION OF A GIVEN AREA ' .

25 ARTICLE 130 ( 3 ) PROVIDES THAT :

' THE MEASURES AUTHORIZED UNDER PARAGRAPH ( 2 ) MAY INVOLVE DEROGATIONS FROM THE RULES OF THE EEC TREATY AND OF THIS ACT TO SUCH AN EXTENT AND FOR SUCH PERIODS AS ARE STRICTLY NECESSARY IN ORDER TO ATTAIN THE OBJECTIVES REFERRED TO IN PARAGRAPH ( 1 ). PRIORITY SHALL BE GIVEN TO SUCH MEASURES AS WILL LEAST DISTURB THE FUNCTIONING OF THE COMMON MARKET ' .

26 THAT REQUIREMENT MAY BE EXPLAINED BY THE FACT THAT A PROVISION PERMITTING THE AUTHORIZATION OF PROTECTIVE MEASURES WITH REGARD TO A MEMBER STATE WHICH DEROGATE , EVEN TEMPORARILY AND IN RESPECT OF CERTAIN PRODUCTS ONLY , FROM THE RULES RELATING TO THE FREE MOVEMENT OF GOODS MUST , LIKE ANY PROVISION OF THAT NATURE , BE INTERPRETED STRICTLY .

27 THE APPLICANTS ARGUE THAT THE DECISION AT ISSUE HAS A SERIOUS IMPACT ON THE GREEK TRADERS CONCERNED , EVEN THOUGH THERE IS NOT THE SLIGHTEST INDICATION IN THE STATEMENT OF THE REASONS ON WHICH THAT DECISION IS BASED THAT THE COMMISSION TOOK INTO ACCOUNT THE VERY SERIOUS EFFECTS WHICH ITS DECISION WOULD HAVE FOR THOSE TRADERS .

28 IT MUST BE OBSERVED THAT IN ORDER TO ASCERTAIN WHETHER THE MEASURE WHOSE AUTHORIZATION IS BEING CONSIDERED MEETS THE CONDITIONS LAID DOWN IN ARTICLE 130 ( 3 ) THE COMMISSION MUST ALSO TAKE INTO ACCOUNT THE SITUATION IN THE MEMBER STATE WITH REGARD TO WHICH THE PROTECTIVE MEASURE IS REQUESTED . IN PARTICULAR , IN SO FAR AS THE CIRCUMSTANCES OF THE CASE PERMIT , THE COMMISSION MUST INQUIRE INTO THE NEGATIVE EFFECTS WHICH ITS DECISION MIGHT HAVE ON THE ECONOMY OF THAT MEMBER STATE AS WELL AS ON THE UNDERTAKINGS CONCERNED . IN THAT CONNECTION IT MUST ALSO CONSIDER , IN SO FAR AS IS POSSIBLE , THE CONTRACTS WHICH THOSE UNDERTAKINGS , RELYING ON THE CONTINUATION OF FREE TRADE WITHIN THE COMMUNITY , HAVE ALREADY ENTERED INTO AND WHOSE EXECUTION WILL BE WHOLLY OR PARTIALLY PREVENTED BY THE DECISION AUTHORIZING THE PROTECTIVE MEASURE .

29 IN THAT REGARD THE COMMISSION OBJECTS THAT IT WOULD BE IMPOSSIBLE FOR IT , DURING THE BRIEF PERIOD WITHIN WHICH IT MUST ACT , TO MAKE ITSELF AWARE OF THE EXACT NUMBER OF CONTRACTS MEETING THAT DESCRIPTION .

30 THAT ARGUMENT CANNOT BE ACCEPTED IN THE LIGHT OF THE CIRCUMSTANCES OF THIS CASE . BEFORE ADOPTING THE CONTESTED DECISION THE COMMISSION HAD SUFFICIENT TIME TO OBTAIN THE NECESSARY INFORMATION . AS THE COMMISSION ADMITTED AT THE HEARING , MOREOVER , IT HAD ARRANGED A MEETING WITH REPRESENTATIVES OF THE GREEK GOVERNMENT AND OF THE TRADE INTERESTS CONCERNED , WHICH EVEN INCLUDED CERTAIN OF THE APPLICANTS .

31 IN THOSE CIRCUMSTANCES IT MUST BE CONCLUDED THAT THE COMMISSION WAS IN A POSITION TO OBTAIN SUFFICIENTLY EXACT INFORMATION ON THE CONTRACTS ALREADY ENTERED INTO WHICH WERE TO BE PERFORMED DURING THE PERIOD OF APPLICATION OF THE DECISION AT ISSUE . IT FOLLOWS THAT THE UNDERTAKINGS WHICH WERE PARTY TO CONTRACTS MEETING THAT DESCRIPTION MUST BE CONSIDERED AS INDIVIDUALLY CONCERNED FOR THE PURPOSE OF THE ADMISSIBILITY OF THIS ACTION , AS MEMBERS OF A LIMITED CLASS OF TRADERS IDENTIFIED OR IDENTIFIABLE BY THE COMMISSION AND BY REASON OF THOSE CONTRACTS PARTICULARLY AFFECTED BY THE DECISION AT ISSUE .

32 THE OBJECTION OF INADMISSIBILITY RAISED BY THE COMMISSION AND SUPPORTED BY THE GOVERNMENT OF THE FRENCH REPUBLIC MUST THEREFORE BE DISMISSED , EXCEPT AS REGARDS THE TWO APPLICANTS REFERRED TO ABOVE IN PARAGRAPH 18 .

33 WITH REGARD TO THE SUBSTANCE OF THE CASE , IT APPEARS FROM THE TEXT OF THE DECISION IN QUESTION THAT THE COMMISSION DID TO A CERTAIN EXTENT COMPLY WITH THE REQUIREMENTS LAID DOWN BY ARTICLE 130 ( 3 ). IT DID AUTHORIZE QUOTAS LESS STRICT THAN THOSE REQUESTED BY THE FRENCH REPUBLIC . IN ARTICLE 3 OF THE DECISION , MOREOVER , IT INCLUDED A CLAUSE EXEMPTING SHIPMENTS SENT FROM GREECE BEFORE THE NOTIFICATION OF THE DECISION .

34 HAVING REGARD TO THE PARTICULAR CIRCUMSTANCES OF THIS CASE , IT DOES NOT HOWEVER APPEAR THAT THE COMMISSION TOOK SUFFICIENT ACCOUNT OF THE INTERESTS OF OTHER GREEK TRADERS ALSO AFFECTED BY ITS DECISION . IN A CASE SUCH AS THIS , WHERE THE REQUEST FOR PROTECTIVE MEASURES WAS MADE AT THE TIME WHEN THE MEMBER STATE REQUESTING THEM WAS ALREADY APPLYING AN UNAUTHORIZED SYSTEM OF IMPORT QUOTAS FOR THE PRODUCTS IN QUESTION , THE COMMISSION SHOULD HAVE BEEN MORE PRUDENT IN ITS ATTITUDE AND SHOULD HAVE SHOWN GREATER CONCERN FOR THE SITUATION OF THE GREEK UNDERTAKINGS ; IT SHOULD IN PARTICULAR HAVE TAKEN INTO ACCOUNT , WITH A VIEW TO THEIR POSSIBLE EXEMPTION IN WHOLE OR IN PART FROM THE APPLICATION OF THE DECISION , CONTRACTS ENTERED INTO IN GOOD FAITH BEFORE THE DATE OF THAT DECISION AND TO BE PERFORMED DURING THE MONTHS COVERED BY THE PROTECTIVE MEASURES .

35 IT FOLLOWS FROM THE FOREGOING THAT IN TAKING INTO CONSIDERATION ONLY THOSE CONTRACTS UNDER WHICH SHIPMENTS HAD ALREADY BEEN SENT FROM GREECE AND NOT THOSE WHICH MET THE DESCRIPTION SET OUT ABOVE , ALTHOUGH NOTHING PREVENTED IT FROM DOING SO , THE COMMISSION DID NOT ENTIRELY COMPLY WITH THE PROVISIONS OF ARTICLE 130 ( 3 ).

36 THE APPLICANTS ALSO ARGUE THAT THE PRODUCT TO WHICH THE DECISION AT ISSUE APPLIES DOES NOT CONSTITUTE A ' SECTOR OF THE ECONOMY ' AS REFERRED TO IN ARTICLE 130 OF THE ACT OF ACCESSION . IN THAT REGARD THEY MAINTAIN THAT COMBED COTTON YARN , TO WHICH THE REQUEST FOR PROTECTIVE MEASURES MADE BY THE GOVERNMENT OF THE FRENCH REPUBLIC REFERRED , CAN ONLY WITH DIFFICULTY BE DISTINGUISHED FROM CARDED COTTON YARN , SINCE THE TWO PRODUCTS ARE LARGELY INTERCHANGEABLE AND REQUIRE THE SAME PRODUCTION STRUCTURE .

37 IT APPEARS , HOWEVER , THAT ALTHOUGH THE REQUEST OF THE GOVERNMENT OF THE FRENCH REPUBLIC REFERRED TO DIFFICULTIES IN THE COMBED COTTON YARN SECTOR ALONE THE COMMISSION DECISION APPLIED TO BOTH COMBED AND CARDED YARNS . THE COMMISSION THUS MADE NO DISTINCTION BETWEEN THOSE TWO PRODUCTS . THE ARGUMENT SET OUT ABOVE IS THEREFORE IRRELEVANT AND MUST BE REJECTED .

38 THE APPLICANTS GO ON TO STATE THAT THE DECISION AT ISSUE REFERS TO THE EXISTENCE OF BOTH ' DIFFICULTIES . . . WHICH ARE SERIOUS AND LIABLE TO PERSIST ' IN A SECTOR OF THE ECONOMY AND ' DIFFICULTIES . . . WHICH COULD BRING ABOUT SERIOUS DETERIORATION IN THE ECONOMIC SITUATION OF A GIVEN AREA ' , AS REFERRED TO IN ARTICLE 130 , BUT THAT NEITHER OF THOSE ALTERNATIVE CONDITIONS IS IN ITSELF MET .

39 IN THAT REGARD IT MUST FIRST BE POINTED OUT THAT ALTHOUGH ARTICLE 130 LAYS DOWN TWO DISTINCT CONDITIONS UNDER WHICH THE COMMISSION MAY AUTHORIZE A PROTECTIVE MEASURE , THAT DOES NOT MEAN THAT FACTORS RELATING TO ONE OR THE OTHER OF THOSE CONDITIONS MAY NOT BE TAKEN INTO ACCOUNT GENERALLY IN ORDER TO ARRIVE AT THE CONCLUSION THAT THE REQUEST FOR A PROTECTIVE MEASURE MADE BY A MEMBER STATE IS JUSTIFIED .

40 FURTHERMORE , IN THE APPLICATION OF ARTICLE 130 THE COMMISSION HAS A WIDE DISCRETION IN DETERMINING WHETHER THE CONDITIONS JUSTIFYING THE ADOPTION OF A PROTECTIVE MEASURE ARE PRESENT . AS THE COURT HAS HELD ON SEVERAL OCCASIONS ( SEE JUDGMENT OF 25 JANUARY 1979 , CASE 98/78 , RACKE , ( 1979 ) ECR 69 ), IN CASES INVOLVING SUCH DISCRETION THE COURT MUST RESTRICT ITSELF TO CONSIDERING WHETHER THE EXERCISE OF THAT DISCRETION CONTAINS A MANIFEST ERROR OR CONSTITUTES A MISUSE OF POWER OR WHETHER THE COMMISSION CLEARLY EXCEEDED THE BOUNDS OF ITS DISCRETION .

41 THERE IS NO BASIS FOR HOLDING THAT THE COMMISSION ' S DECISION IS VITIATED BY SUCH DEFECTS . THAT SUBMISSION MUST THEREFORE BE REJECTED .

42 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT COMMISSION DECISION NO 81/988 OF 30 OCTOBER 1981 AUTHORIZING THE FRENCH REPUBLIC TO TAKE PROTECTIVE MEASURES WITH REGARD TO IMPORTS OF COTTON YARN FROM GREECE MUST BE DECLARED VOID IN SO FAR AS IT APPLIES TO CONTRACTS ENTERED INTO BEFORE THE DATE OF ITS NOTIFICATION AND TO BE PERFORMED DURING THE PERIOD OF ITS APPLICATION .

Decision on costs

COSTS

43 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . ACCORDING TO THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 3 ), HOWEVER , WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS , OR WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL , THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

44 IN THIS CASE THE CONTESTED DECISION HAS BEEN DECLARED VOID IN PART ONLY . THE COMMISSION SHOULD THEREFORE BE ORDERED TO PAY HALF OF THE COSTS INCURRED BY THE APPLICANTS , AS WELL AS ITS OWN COSTS .

45 SINCE THE ACTION HAS BEEN DECLARED INADMISSIBLE IN SO FAR AS VOMVYX P.V . SVOLOPOULOS AND KOUTROUBIS A.E . AND UNICOT HELLAS A.E . ARE CONCERNED , HOWEVER , THOSE UNDERTAKINGS MUST BEAR ALL THEIR OWN COSTS .

46 THE GOVERNMENT OF THE FRENCH REPUBLIC , INTERVENING , MUST PAY THE COSTS ARISING FROM ITS INTERVENTION .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE IN SO FAR AS VOMVYX P.V . SVOLOPOULOS AND CHR . KOUTROUBIS A.E . AND UNICOT HELLAS A.E . ARE CONCERNED ;

2.DECLARES VOID COMMISSION DECISION NO 81/988 OF 30 OCTOBER 1981 AUTHORIZING THE FRENCH REPUBLIC TO TAKE PROTECTIVE MEASURES WITH REGARD TO IMPORTS OF COTTON YARN FROM GREECE IN SO FAR AS IT APPLIES TO CONTRACTS ENTERED INTO BEFORE THE DATE OF ITS NOTIFICATION AND TO BE PERFORMED DURING THE PERIOD OF ITS APPLICATION ;

3.FOR THE REST , DISMISSES THE APPLICATION ;

4.ORDERS THE COMMISSION TO PAY ITS OWN COSTS AND HALF OF THE COSTS INCURRED BY THE APPLICANTS WITH THE EXCEPTION OF VOMVYX P.V . SVOLOPOULOS AND CHR . KOUTROUBIS A.E . AND UNICOT HELLAS A.E ., WHICH ARE ORDERED TO PAY THEIR OWN COSTS ;

5.ORDERS THE GOVERNMENT OF THE FRENCH REPUBLIC TO PAY THE COSTS WHICH IT INCURRED AS A RESULT OF ITS INTERVENTION .