CELEX: C1995/268/51
Language: en
Date: 1995-10-14 00:00:00
Title: Action brought on 28 February 1995 by Comafrica SpA and another against the Commission of the European Communities (Case T-72/95)

14 . 10 . 95            EN                  Official Journal of the European Communities                                   No C 268/23
      ORDER OF THE COURT OF FIRST INSTANCE                             Parliament concerning the subsequent conduct of that
                          of 29 June 1995                              procedure, the President of the Court of First Instance has
                                                                       made an order on 18 August 1995 , in which :
in Case T-6/95 : Cantine dei colli Berici coop, arl v.
        Commission of the European Communities ( J )                   1 , the application for interim measures is dismissed;
(Agriculture — Common organization ofthe market in wine
— System of compulsory distillation — Admissibility —                  2,   the costs are reserved.
       Applicant individually concerned by a regulation)
                           ( 95/C 268/49 )
                 (Language of the case: Italian)
                                                                       Action brought on 28 February 1995 by Comafrica SpA and
In Case T-6/95 : Cantine dei colli Berici coop , arl, having its       another against the Commission of the European
                                                                                                  Communities
registered office in Lonigo ( Italy ), represented by Ivone
Cacciavillani, of the Venice Bar, with an address for service                                  ( Case T-72/95 )
in Luxembourg at the Chambers of Alain Lorang, 51 rue                                            ( 95/C 268/51 )
Albert I er, against Commission of the European
Communities ( Agents : Eugenio de March and Alberto Dal                                (Language of the case: English)
Ferro ) — application for the annulment of Article 1 ( 1 ) of
Commission Regulation ( EC ) No 3151 /94 of 21 December
1994 introducing a further derogation from the detailed                An action against the Commission of the European
rules for the delivery by producers of the table wine they are         Communities was brought before the Court of First
required to deliver for compulsory distillation in respect of          Instance of the European Communities on 28 February
the 1993/94 wine year ( OJ L 332, 1994, p. 32 ) — the Court            1 995 by Comafrica SpA, established at Genoa (Italy ), and
of First Instance (Third Chamber), composed of: J.                     Dole Fresh Fruit Europe Ltd & Co ., established at Hamburg
Biancarelli, President, C. P. Briët and C. W. Bellamy, Judges;         ( Germany ), represented by Bernard O'Connor, Solicitor
H. Jung, Registrar, made an order on 29 June 1995 , the                ( Ireland ), with an address for service in Luxembourg at the
operative part of which is as follows :                                Chambers of Arsène Kronshagen, 12 boulevard de la
                                                                       Foire .
I , the application is dismissed as inadmissible;
                                                                       The applicants claim that the Court should :
2 , the applicant is ordered to pay the costs, including those
      relating to the application for interim measures;                — déclaré the application admissible,
3 , the Council shall bear the costs which it incurred in              — declare void Commission Regulation ( EC ) No 2947/94
      submitting its application to intervene.                              of 2 December 1994 fixing the single reduction
                                                                            coefficient for the determination of the quantity of
                                                                            bananas to be allocated to operators in categories A and
( 1 ) OJ No C 74, 25 . 3 . 1995 .                                           B from the tariff quota for 1995 ( ! ), in so far as it affects
                                                                            the applicants, or alternatively, erga omnes,
                                                                       — order the Commission to pay the costs.
                                                                       Pleas in law and main arguments adduced in support:
                ORDER OF THE PRESIDENT
           OF THE COURT OF FIRST INSTANCE                              The applicants, both of which import bananas into the
                                                                       Community, dispute the decisions of the Commission to
                        of 18 August 1995
                                                                       reduce the quantity of bananas allocated to them for the
in Case T-146/95 R: Giorgio Bernardi v. European                       year 1995 through the allocation of a provisional reduction
                              Parliament                               coefficient set out in the contested regulation.
                           ( 95/C 268/50 )
                                                                       They maintain, first, that the Commission determined the
                                                                       reduction coefficient on the basis of wrongly calculated
                 (Language of the case: French)                        reference quantities, in that the contested Regulation
                                                                       acknowledges that certain quantities have been counted
In Case T- 1 46/95 R: Giorgio Bernardi, a former official of           twice for different operators in several Member States, and
the European Parliament, residing in Luxembourg,                       that the criteria for determining the activities giving right to
represented by Giancarlo Lattanzi, of the Massa-Carrara                an allocation from the tariff quota have been incorrectly
Bar ( Italy ), with an address for service in Luxembourg at the        applied . The Commission has further admitted that the
applicant's residence, 33 rue Godchaux v . European                     1995 reference quantities can only be laid down after
Parliament ( Agents : Ezio Perillo and Christian Pennera ) —           further checks have been made . In the circumstances, it has
application for interim measures, namely for suspension of             chosen to fix a provisional reduction coefficient using
the procedure for appointment to the office of Ombudsman               wrong information, but without the necessary express
and for various instructions to be addressed to the European           power so to do.
 ---pagebreak--- No C 268/24             EN                   Official Journal of the European Communities                                   14 . 10 . 95
Second,      the  Commission         determined    the  reduction       The applicant claims that the Court should:
coefficients without first preparing a supply balance for
1995 , as required by Article 16 of Council Regulation ( EEC )          — annul the decision of the Commission notified to
No 404/93 of 13 February 1993 establishing the common                       the applicant by letter No 5445 from DAFSE
organization of the market in bananas ( 2 ). Failure to prepare             ( Departamento para Asuntos do Fundo Social Europeu
such a supply balance amounts to a procedural irregularity                  — the Portuguese European Social Fund Agency ) of
entailing the illegality of any determination of the reduction              11 May 1995 , amending, changing and reducing the
coefficients by reference to the quota .                                    amount which had been initially approved and granted
                                                                            by another Commission decision approving file Nos
Third, in determining the reduction coefficient, the                        881311 PI and 880249 P3 ,
Commission infringed the principles of fairness,
reasonableness and good administration . The applicants                 — order the Commission to pay the costs .
maintain that the coefficients of 57, 15 and 28 % , applied by
the Commission to quantities of bananas handled by                      Pleas in law and main arguments adduced in support:
primary importers, secondary importers and ripeners
respectively, are quite arbitrary . Moreover, those three               The application alleges the following defects vitiate the
categories of operators have not been clearly defined in such           legality of the Commission's decision which considers the
a way as to prevent the same bananas from being counted                 expenditure ineligible and orders the repayment of the
more than once in each of the three categories of operators .           amounts received by the applicant by way of initial
The Commission should have drawn up rules of                            advance :
administration to eliminate or reduce the risks of double
counting, but failed to do so, with the result that the                 — the decision which has now been notified to the
category of secondary importer has been wrongfully                          applicant is, even now, non-existent in its view because it
extended by some Member States . Furthermore, by reason                     has no knowledge of its actual content,
of a contradiction between the provisions of Articles 4 ( 3 )
and 7 of Commission Regulation ( EEC ) No 1442/93 of                    — the decision is unlawful inasmuch as it infringes Council
10 June 1993 laying down detailed rules for the application                 Decision 83/516/EEC of 17 October 1983 on the tasks
of the arrangements for importing bananas into the                          of the European Social Fund, Council Regulation ( EEC )
Community ( 3 ), the criteria for entitlement to a quota                    No 2950/83 of 17 October 1983 on the implementation
allocation have been more strictly applied in some Member                   of Decision 83/516/EEC and Commission Decision
States than in others . In addition, the Commission has not                  83/673/EEC of 22 December 1983 on the management
required operators to keep adequate records of the source of                 of the European Social Fund,
their fruits, with the serious consequence that bananas
imported otherwise than under category A licences appear                — the decision infringes the initial decision approving the
to have been taken into account as part of the category A                    files, which imposes only one condition : implementation
reference quantities .                                                       of the operations . The condition imposed on the
                                                                             applicant was fulfilled and the operations were
(') OJ No L 310 , 3 . 12 . 1994 .
                                                                             implemented,
 ( 2 ) OJ No L 47, 25 . 2 . 1993 .
 (•') OJ No L 142 , 12 . 6 . 1993 .                                     — the decision is fundamentally contradictory in view of
                                                                             the contents of the letter from DAFSE notifying it, thus
                                                                             infringing the applicant's rights of defence,
                                                                        — the decision also infringes essential procedural
                                                                             requirements inasmuch as it lacks a statement of reasons
                                                                             or at least is based on assumptions which are erroneous,
                                                                             obscure and inconsistent, which, in the view of the
Action brought on 10 July 1995 by Proderec — Formaçâo e                      applicant, constitute insufficient grounds.
 Desenvolvimento de Recursos Humanos, ACE — against
         the Commission of the European Communities
                           ( Case T-145/95 )
                             ( 95/C 268/52 )
                                                                         Action brought on 13 July 1995 by Giorgio Bernardi against
               (Language of tbe case: Portuguese)                                            the European Parliament
                                                                                                 ( Case T-146/95 )
 An action against the Commission of the European                                                  ( 95/C 268/53 )
  Communities was brought before the Court of First
  Instance of the European Communities on 10 July 1995 by                                 (Language of tbe case: Frencb)
  Proderec — Formaçâo e Desenvolvimento de Recursos
  Humanos, ACE, whose registered office is at 7B Avenida 25
  de Abril, S/loja, Almada , represented by Manuel Rodrigues,            An action against the European Parliament was brought
  of the Lisbon Bar, with an address for service in                      before the Court of First Instance of the European
  Luxembourg at 2 place Virchow, 2671 Luxembourg.                        Communities on 13 July 1995 by Giorgio Bernardi, residing