CELEX: C1997/357/60
Language: en
Date: 1997-11-22 00:00:00
Title: Action brought on 19 September 1997 by Fruchthandelsgesellschaft mbH Chemnitz against the Commission of the European Communities (Case T-254/97)

22 . 11 . 97          IEN |                 Official Journal of the European Communities                                        C 357/31
By the decision of 9 July 1997 which is now being                      Pleas in law and main arguments adduced in support:
challenged, the Commission refused the application made
by the applicant on 16 December 1996 .
                                                                       By the contested decision, the application made by the
                                                                       applicant for the award of additional licences to import
The applicant relies on a number of incidents (colapse of              bananas within the framework of the customs quota,
businesses, criminal activities) with South American                   pursuant to Article 30 of Regulation (EEC ) No 404/93 ('),
contractual partners or potential contractual partners                 was granted only in part.
which, it contends, amount to force majeure and justify
the adoption of arrangements to cater for a case of
hardship, in accordance with the case-law of the Court of              In 1991 , the applicant had concluded a long-term contract
Justice (2). Furthermore, the applicant had concluded a                with an Ecuadorian undertaking. That contract contains a
preliminary contract in November 1991 with a South                     guarantee by the applicant as regards the difference with
American undertaking. At that time it was not to be                    the official producer prices in Ecuador and an obligation
envisaged that the external trade rules of the Community               on it to pay to its contractual partner compensation of up
system for bananas would consist of quota rules with                   to US $ 1 million, if it terminates the contract before the
favourable tariffs . The applicant should not under any                agreed date on grounds other than those provided for in
circumstances have had to anticipate a flagrant                        the contract. A restriction on imports was not agreed as a
infringement of the GATT, as was established by the                    ground for termination since, at that time, the parties to
GATT Panel in January 1994. It could have expected that                the agreement still did not have any idea of the structure
it would not be impeded when it marketed in the                        of an EC market organization for bananas. In particular,
Community through quotas the quantities contracted for                 the applicant should have been able to assume that a
with its contractual partner.                                          future EC market organization for bananas would comply
                                                                       with the GATT and, at any rate, that the quantities
                                                                       contracted for would be allowed to be marketed in the
(') OJ L 47, 25 . 2 . 1993 , p . 1 .
(2 ) Case C-68/95 T. Port v. Bundesanstalt für Landwirtschaft und      Community unhindered by quotas.
     Ernährung [ 1996] ECR 1-6065 .
                                                                       The applicant contends that its inability to import the
                                                                       bananas into the Community because it does not have an
                                                                       import licence amounts to a circumstance which satisfies
                                                                       all the preconditions for the adoption of arrangements to
                                                                       cater for a case of hardship.
Action brought on 16 September 1997 by Anton Diirbeck
        GmbH against the Commission of the European
                             Communities                               The applicant challenged, in addition to the part of the
                          ( Case T-252/97)
                                                                       decision refusing the grant of the licences, the provision
                                                                       under which the licences granted on grounds of hardship
                            ( 97/C 357/59 )                            are not to be taken into account in calculating its
                                                                       reference quantities for future years. The contested
                 (Language of the case: German)                        decision adopted by the Commission not only infringes
                                                                       Article 30 of Regulation No 404/93 as interpreted by the
                                                                       Court of Justice in its case-law ( 2 ) but also constitutes a
An action against the Commission of the European                       misuse of powers.
Communities was brought before the Court of First
Instance of the European Communities on 16 September
                                                                       (') OJ L 47, 25 . 2 . 1997, p . 1 .
 1997 by Anton Diirbeck GmbH, Frankfurt am Main,                        ( 2 ) Case C-68/95 T. Port v. Bundesanstalt für Landwirtschaft und
represented by Gert Meier, Rechtsanwalt, Cologne, with                        Ernährung [ 1996] ECR 1-6065 .
an address for service in Luxembourg at the Chambers of
Marc Baden, 24 Rue Marie-Adelaide .
The applicant claims that the Court should:
— annul, on the grounds of infringement of the Treaty                  Action brought on 19 September 1997 by Fruchthandels­
      and misuse of powers, the decision of the Commission             gesellschaft mbH Chemnitz against the Commission of the
      of 10 July 1997 on the adoption of transitional                                         European Communities
      measures in favour of A. Diirbeck under the common
                                                                                                 (Case T-254/97)
      organization of the market in bananas in so far as,
      pursuant to Article 1 ( 6 ) of the decision, the licences                                    ( 97/C 357/60 )
      granted on grounds of hardship are not to be taken
      into account in calculating the applicant's reference
      quantities for future years and, under Article 2, the                              (Language of the case: German)
      further applications made by the applicant on
      24 December 1996 were rejected,
                                                                        An action against the Commission of the European
                                                                        Communities was brought before the Court of First
 — order the Commission to pay the costs.                               Instance of the European Communities on 19 September
 ---pagebreak--- C 357/32              EN                    Official Journal of the European Communities                                     22 . 11 . 97
1997 by Fruchthandelsgesellschaft mbH Chemnitz,                        — the direction by the Treuhandanstalt to suspend
Chemnitz, represented by Jiirgen Mielke and Thorsten W.                      banana ripening in April 1993 amounts to an
Albrecht, Rechtsanwalte, Hamburg, with an address for                        'exceptional circumstance'.
service in Luxembourg at the Chambers of Mr Entringer,
34A Rue Philippe II.                                                    (') OJL 47, 25 . 2 . 1993 , p . 1 .
                                                                        ( ) Case C-68/95 T. Port v. Bundesanstalt für Landwirtschaft und
                                                                            Ernährung [ 1996 \ ECR 1-6065 .
The applicant claims that the Court should:
— annul the decision of the Commission of 9 July 1997
    ( Ref.: VI/6251/97/DE ), pursuant to the first paragraph
    of Article 174 of the Treaty,
                                                                       Action brought on 17 September 1997 by Georges Keiser
— order the Commission to pay the applicant's costs                          against Commission of the European Communities
    pursuant to Article 87 ( 2 ) of the Rules of Procedure .
                                                                                                 ( Case T-255/97)
                                                                                                    97/C 357/61 )
Pleas in law and main arguments adduced'in support:
                                                                                        (Language of the case: French)
By the contested decision, the Commission rejected the
application made by the applicant pursuant to Article 30
of Regulation ( EEC ) No 404/93 (') for the grant of                   An action against the Commission of the European
additional licences for the import of bananas under the                 Communities was brought before the Court of First
rules on tariff quotas . The applicant, founded on 1 January           Instance of the European Communities on 17 September
1994, is the legal successor of a DDR state-owned                       1997 by Georges Keiser, residing in Asselscheuer
enterprise which had existed since 1953 and had an                      ( Luxembourg), represented by Lucas Vogel, of the Brussels
annual banana-ripening capacity of up to 14 500 tonnes .                Bar, with an address for service in Luxembourg at the
In April 1993 , the banana ripening ceased on the direction            applicant's residence, 44 Rue de Grunewald .
of the Treuhandanstalt. Because of the structural problems
in the new Bundeslander, it was not possible for the                   The applicant claims that the Court should:
applicant to complete the necessary modernization process
before the adoption of the ' market organization in
bananas'. Even if it had managed to do that in time, it                — annul the decision of 4 June 1997, notified to the
would, on the basis of the reference years to be taken into                  applicant on 16 June 1997, rejecting his complaint
account under Article 19 ( 2 ) of Regulation ( EEC ) No 404/                 concerning the decision of 20 December 1996 refusing
93 , have been allocated an unusually low quota .                            his request for reinstatement in his usual duties in the
Furthermore, it had relied, first, on its banana quota being                 Security Office, Luxembourg,
calculated, because of the special situation in the new
Bundeslander, by reference to the capacity of its                      ■— order the defendant to pay the costs of the
predecessor and, secondly, on the years 1993 to 1995 ,                       proceedings.
when capacity was exceedingly poor, not being used as
reference years for the grant of import licences.
                                                                       Pleas in law and main arguments adduced in support:
In its action, the applicant puts forward the following                The applicant, who is attached to the Security Office in
pleas :                                                                Luxembourg, states, first, that he gave evidence at a
                                                                       hearing on 3 December 1991 in the course of
— the Commission misused its powers in that it failed to               investigations concerning irregularities which had occurred
    recognize that the preconditions for cases of hardship             in the management of the Security Office in Luxembourg
    developed by the Court of Justice in a case with the               and at that hearing revealed details of various improper
    same facts ( 2 ) were satisfied,                                   practices which he had witnessed. Shortly before that
                                                                       hearing, the applicant had participated in tests for a
— the Commission infringed the principle of equal                      general competition. Following that competition,
    treatment under Community law, because, while it                   disciplinary proceedings were commenced against him. He
    was not possible for the applicant to achieve                      was accused of dishonesty during the tests. Following the
    significant turnover in the reference years, it is                 disciplinary proceedings, the applicant received a
    nevertheless being treated, in the same way as all other           reprimand on 11 January 1995 . He had, however, been
                                                                       informed that his services would be made available to the
    Western European undertakings in the fruit trade,
                                                                       Publications Office from 31 July 1992 .
— the applicant's property rights are being interfered
    with and it is being prevented from exercising its right           The applicant puts forward the following pleas in support
                                                                       of his claims :
    to practice a trade freely, since, as a trader offering a
    full selection of fruit, it is highly dependent on banana
    ripening, and, without the grant of additional licences,           — infringement of Articles 90 ( 1 ) and 2 ( 1 ) of the Staff
    the basis for its existence is at risk,                                  Regulations and of the published Commission decision