CELEX: C1996/046/10
Language: en
Date: 1996-02-17 00:00:00
Title: Appeal brought on 13 December 1995 by (1) Antillean Rice Mills NC, (2) European Rice Brokers AVV and (3) Guyana Investments AVV against the judgment delivered on 14 September 1995 by the Court of First Instance of the European Communities in Joined Cases T-480/93 and T-483/93, between (1) Antillean Rice Mills NV, (2) Trading & Shipping Co. Ter Beek BV, (3) European Rice Brokers AVV, (4) Alesie Curaçao NV and (5) Guyana Investments AVV, on the one hand, and Commission of the European Communities, supported by Council of the European Union, French Republic and Italian Republic, on the other hand (Case C-390/95 P)

No C 46/6               EN                  Official Journal of the European Communities                                    17 . 2 . 96
Appeal brought on 13 December 1995 by ( 1 ) Antillean Rice                the case back to the Court of First Instance for
Mills NC, ( 2 ) European Rice Brokers AVV and ( 3 ) Guyana                judgment.
Investments AW against the judgment delivered on
14 September 1995 by the Court of First Instance of the
European Communities in Joined Cases T-480/93 and
T-483/93 , between ( 1 ) Antillean Rice Mills NV, ( 2 ) Trading
                                                                       Contentions and main arguments
& Shipping Co. Ter Beek BV, ( 3 ) European Rice Brokers
AW, ( 4 ) Alesie Curasao NV and ( 5 ) Guyana Investments
AW, on the one hand, and Commission of the European
Communities, supported by Council of the European                      — Breach and/or misapplication of Part Four and/or
Union, French Republic and Italian Republic, on the other                 Article 190 of the Treaty, and/or of the OCT
                                hand                                      Decision ( 3), and in any event of generally applicable
                         Case C-390/95 P )                                principles of Community law, in what the Court of First
                           ( 96/C 46/ 10                                  Instance considered and decided in paragraphs 90 to 97
                                                                          of the judgment under appeal, and in particular in its
                                                                          decision that the Council is entitled, in implementing
An appeal against the judgment delivered on 14 September                  decisions taken on the basis of the second paragraph of
1995 by the Court of First Instance of the European                       Article 136 of the Treaty, to adopt safeguard clauses
Communities in Joined Cases T-480/93 and T-483/93 ,                       authorizing restrictions on the freedom to import
between ( 1 ) Antillean Rice Mills NV, ( 2 ) Trading &                    agricultural products from the OCT.
Shipping Co . Ter Beek BV, ( 3 ) European Rice Brokers AW,
( 4 ) Alesie Curasao NV and ( 5 ) Guyana Investments AW,
on the one hand, and Commission of the European
Communities, supported by Council of the European                      — Breach and/or misapplication of Part Four and/or
Union, French Republic and Italian Republic, on the other                 Article 190 of the Treaty, and/or of the OCT Decision,
hand, was brought before the Court of Justice of the                      and in any event of generally applicable principles of
European Communities on 13 December 1995 by ( 1 )                         Community law, in what the Court of First Instance
Antillean Rice Mills NC, ( 2 ) European Rice Brokers AW                   considered and decided in paragraphs 119 to 131 of the
and ( 3 ) Guyana Investments AW, represented by P.                        judgment under appeal , and in particular in its decision
                                                                          that the Commission was entitled to find that difficulties
Glazener and W. Knibbeler, fo the Rotterdam Bar, and J.
Pel, of the Amsterdam Bar, with an address for service in                 had arisen which might result in a deterioration in the
Luxembourg at the Chambers of N. Loesch, 11 Rue                           Indica rice growing sector in the Community.
Goethe .
The appellants claim that the Court should :                           — Breach and/or misapplication of Article 109 ( 2 ) of the
                                                                          OCT Decision, and in any event of generally applicable
 1 . Set aside the contested judgment ( 1 ) in so far as the forms        principles of Community law, in what the Court of First
      of order sought by the applicants were not granted in               Instance considered and decided in paragraphs 149, 150
      full;                                                               and 151 of the judgment under appeal, and in particular
                                                                          in its decision that the minimum price in the second
                                                                          decision did not go beyond what was strictly necessary
2 . Grant in full the forms of order already sought by the                within the meaning of Article 109 ( 2 ).
      applicants before the Court of First Instance ( 2 ),
      namely:
      2.1 . Annul in their entirety Commission Decision                — Breach and/or misapplication of Article 190 and/or 215
            93/ 127/EEC of 25 February 1993 introducing                   of the Treaty, and in any event of generally applicable
            safeguard measures in respect of rice originating in          principles of Community law, in what the Court of First
            the    Netherlands     Antilles   and    Commission           Instance considered and decided in paragraphs 41 and
            Decision 93/21 1 /EEC of 13 April 1993 modifying               177 to 186 of the judgment under appeal , and in
            Decision 93/ 127/EEC concerning safeguard                      particular in its decision that in the circumstances of the
            measures in respect of rice originating in the                 present case the Community can only incur liability if a
            Netherlands Antilles;                                          sufficiently flagrant violation of a superior rule of law
                                                                           for the protection of the individual has occurred .
      2.2 . Order the Community to make good the damage
             suffered by the applicants as a result of those
             decisions;                                                — Breach and/or misapplication of Article 190 and/or
                                                                           Article 215 of the Treaty, and in any event of generally
      2.3 . Order the Commission to pay the costs of the                   applicable principles of Community law, in what the
             appeal and of the procedure before the Court of               Court of First Instance considered and decided in
             First Instance ;                                              paragraphs 190 to 194 of the judgment under appeal,
                                                                           and in particular in that it failed to investigate whether
 3 . Give judgment itself in accordance with Article 54 of the             there was any flagrant violation of Community law and
      Statute of the Court of Justice or, in the alternative, refer        furthermore in that in its assessment of the contested
 ---pagebreak--- 17 . 2 . 96              EN                     Official Journal of the European Communities                                       No C 46/7
      decisions it wrongly accorded decisive importance to a                   arbitration clause and, if so, what the place of
      measure adopted by the Netherlands Antilles .                            arbitration is according to that clause ?
— Breach and/or misapplication of Article 190 and/or
                                                                           3 . If the answer to Question 1 is that, in order for the court
      Article 215 of the Treaty, and at least of generally
      applicable principles of Community law, in what the                      hearing the interlocutory application to have
      Court of First Instance considered and decided in                        jurisdiction, the relief sought from it must also take
      paragraph 207 of the judgment under appeal, in                           effect, or be capable of taking effect, in the Contracting
                                                                               State concerned, does that mean that the order applied
      particular in drawing from its finding that the damage in
                                                                               for must be capable of enforcement in that State, and is it
      question was in no way unforeseeable the conclusion
                                                                               then necessary for this condition to be fulfilled when the
      that the damage suffered by the applicants did not go
                                                                               interlocutory application is made, or is it sufficient that
      beyond the economic risks inherent in activity in that
      sector .
                                                                               it can be reasonably expected to be fulfilled in the
                                                                               future ?
(') OJ No C 286 , 28 . 10 . 1995 , p . 10 .
( 2 ) OJ No C 171 , 22 . 6 . 1993 , pp . 11 and 12 .                       4 . Does the possibility, provided for in Article 289 et seq.
( 3 ) Council Decision 91 /482/EEC of 25 July 1991 ( OJ 1 991 L 263 ,          of the Netherlands Code of Civil Procedure, of applying
      p. 1 ).                                                                  on grounds of pressing urgency to the President of the
                                                                               Arondissementsrechtbank              ( District  Court )    for
                                                                               immediate anticipatory relief constitute a 'provisional '
                                                                               or 'protective' measure within the meaning of Article 24
                                                                               of the Brussels Convention ?
Reference for a preliminary ruling from the Hoge Raad der                  5 . Does it make any difference to the answer to Question 4
Nederlanden by judgment of that court of 8 December 1995                       whether substantive proceedings on the main issue are,
in      the    case  of     Van     Uden      Africa   Line   v.   (1)         or may become, pending and, if so, is it material that
Kommanditgesellschaft             in  Firma       Deco-Line,     Peter         arbitration proceedings had started in the same case ?
              Determann KG and ( 2 ) Peter Determann
                           ( Case C-391/95 )
                                                                           6 . Does it make any difference to the answer to Question 4
                              ( 96/C 46/ 11 )                                  whether the interim relief sought is an order requiring
                                                                               performance of a payment obligation, as referred to in
Reference has been made to the Court of Justice of the                         Question 1 ?
European Communities by judgment of the Hoge Raad der
Nederlanden ( Supreme Court of the Netherlands ) of
                                                                           7. If Question 4 must be answered in the affirmative, and
8 December 1995 , which was received at the Court Registry
on 14 December 1995 , for a preliminary ruling in the case of                  'the courts of another Contracting State have
                                                                               jurisdiction as to the substance of the matter', must
Van Uden Maritime BV, trading as Van Uden Africa Line, v.
 ( 1 ) Kommanditgesellschaft in Firma Deco-Line, Peter                         Article 24, and in particular the reference therein to
                                                                                ' such provisional . . . measures as may be available
Determann KG and ( 2 ) Peter Determann on the following
                                                                               under the law of [a Contracting] State', be interpreted as
questions :
                                                                               meaning that the court hearing the application for
                                                                                interim measures ( automatically ) has jurisdiction if it
 1 . Where an obligation to pay a sum or sums due under a                      has jurisdiction under its national jurisdictional rules,
       contract must be performed in a Contracting State — so                  even where the rules in question are those referred to in
       that, under Article 5(1 ) of the Brussels Convention, the               the second paragraph of Article 3 of the Brussels
       creditor is entitled to sue his defaulting debtor before the             Convention, or is its jurisdiction in the latter case
       courts of that State with a view to obtaining                           conditional on the fulfilment of more specific
       performance, even though the debtor is domiciled in the                 conditions, for example that the interim relief sought
       territory of another Contracting State —, do the courts                  from that court must take effect, or be capable of taking
       of the first-mentioned State ( automatically ) have                      effect, in the Contracting State concerned ?
       jurisdiction also to hear and determine a claim brought
       by the creditor against his debtor in interim proceedings
       for an order requiring the debtor, as immediate                     8 . If the answer to Question 7 must be that, in order for the
       provisional relief, to pay a sum which, in the view of the               court hearing the application for interim relief to have
       court hearing the interlocutory application, is very                     jurisdiction, it is also required that the relief sought from
       probably due to the creditor, or do more specific                        it must take effect, or be capable of taking effect, in the
       conditions apply in relation to the jurisdiction of the                  Contracting State concerned, does that mean that the
       court hearing the interlocutory application, for example                 order applied for must be capable of enforcement in that
       the condition that the relief sought from that court must                State, and is it then necessary for this condition to be
       take effect, or be capable of taking effect, in the                      fulfilled when the application for interim relief is made,
       Contracting State concerned ?                                             or is it sufficient that it can reasonably be expected to be
                                                                                 fulfilled in the future ?
 2 . Does it make any difference to the answer to Question 1
       whether the contract between the parties contains an