CELEX: C1999/352/63
Language: en
Date: 1999-12-04 00:00:00
Title: Order of the President of the Court of First Instance of 29 September 1999 in Case T-44/98 R II: Emesa Sugar (Free Zone) NV v Commission of the European Communities (Association regime for overseas countries and territories - Decisions 91/482/EEC and 97/803/EC - Regulation (EC) No 2553/97 - Proceedings for interim measures - Extension of interim measures)

4.12.1999               EN                     Official Journal of the European Communities                                            C 352/35
European Communities (Agents: Florence Duvieusart-Clotuche                   Sugar v Commission[1999] ECR II-0000, and in accordance
and Christine Berardis-Kayser) — application for annulment                   with the first paragraph of the operative part therof, operation of
of the decision of the Commission of 17 October 1997                         Article 108b of Council Decision 91/482/EEC of 25 July 1991
relating to the reimbursement of expenses incurred by the                    on the association of the overseas countries and territories with
applicant during a mission to Ispra, Italy, from 16 September                the European Community, of Commission Regulation (EC) No
1997 to 20 September 1997 — the Court of First Instance                      2553/97 of 17 December 1997 on rules for issuing import
(Fourth Chamber), composed of R.M. Moura Ramos, President,                   licences for certain products covered by CN codes 1701, 1702,
V. Tiili and P. Mengozzi, Judges; H. Jung, Registrar, gave a                 1703 and 1704 and qualifying as ACP/OCT originating
judgment on 7 October 1999, in which it:                                     products and of the Commission Decision of 23 December 1997
                                                                             (VI/51329) is suspended with respect to Emesa Sugar (Free
1. Dismisses the application.                                                Zone) NV.
2. Orders the parties to bear their own costs.
                                                                          2. Emesa Sugar (Free Zone) NV is authorised to import into the
                                                                             Community milled sugar originating in the overseas countries
(1) OJ 1998 C 312.                                                           and territories (OCT), within the meaning of Article 6 of Annex
                                                                             II to Decision 91/482 and, in accordance with the conditions
                                                                             set out in the version of that Decision which remained in force
                                                                             until 30 November 1997, subject to the following conditions
                                                                             and restrictions:
                                                                             — the imports hereby authorised are subject to the provisions of
                                                                                  Decision 91/482 applicable before the entry into force
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                                      of Council Decision 97/803/EC of 24 November 1997
                            INSTANCE                                              amending at mid-term Decision 91/482 and, in particular,
                                                                                  to the obligation to obtain an import licence in accordance
                                                                                  with Article 5(1) of Commission Regulation (EEC)
                      of 29 September 1999                                        No 3719/88 of 16 November 1988 laying down common
                                                                                  detailed rules for the application of the system of import and
                                                                                  export licences and advance fixing certificates for agricultural
in Case T-44/98 R II: Emesa Sugar (Free Zone) NV v
                                                                                  products, to the obligation to obtain an EUR-I certificate
        Commission of the European Communities                                    and to lodge security of 3 euro/tonne, which will be released
                                                                                  if importation is effected in conformity with the import
(Association regime for overseas countries and territories —                      licence;
Decisions 91/482/EEC and 97/803/EC — Regulation (EC)
No 2553/97 — Proceedings for interim measures — Exten-
                     sion of interim measures)                               — the maximum volume authorised for importation is 7 500
                                                                                  tonnes for the period between 31 October 1999 and
                                                                                  29 February 2000; after 29 February 2000, Emesa Sugar
                          (1999/C 352/63)                                         (Free Zone) NV may continue to import to the Community
                                                                                  sugar delivered to it free on board (FOB) before that date,
                                                                                  provided that the volume imported does not exceed the ceiling
                    (Language of the case: Dutch)                                 of 7 500 tonnes and that importation is conducted in
                                                                                  accordance with the conditions herein set out;
In Case T-44/98 R II: Emesa Sugar (Free Zone) NV, established
at Oranjestad, Aruba, represented by Gerard van der Wal,                     — OCT originating sugar imported into the Community must
Advocate with a right of audience before the Hoge Raad der                        be sold at a price which is at least equal to the intervention
Nederlanden, with an address for service in Luxembourg at the                     price referred to in Article 3(1)(a) of Council Regulation
Chambers of Aloyse May, 31 Grand-Rue, supported by the                            (EEC) No 1785/81 of 30 June 1981 on the common
Government of Aruba, represented by Pierre V.F. Bos and                           organisation of the markets in the sugar sector;
Marco M. Slotboom, of the Rotterdam Bar, with an address for
service in Luxembourg at the Chambers of Loesch & Wolter,
11 Rue Goethe, against Commission of the European Com-                       — Emesa Sugar (Free Zone) NV may import into the Com-
munities (Agent: Thomas van Rijn), supported by the Council                       munity OCT originating sugar, provided that it lodges
of the European Union (Agents: Jürgen Huber and Guus                              security in the form of a bank guarantee in the amount of
Houttuin), the Kingdom of Spain (Agent: Mónica López-Monis                      USD 28 per tonne of the volume of sugar which it wishes to
Gallego) and the French Republic (Agent: Claude Chavance) —                       import in conformity with the present Order; the security
application for extension of the interim relief granted to the                    must be lodged no later than the day on which the sugar is
applicant by the President of the Court of First Instance in his                  declared to the customs authorities and it must cover the
Order of 30 April 1999 in Case T-44/98 R II Emesa Sugar v                         tonnage which enters customs at that time; the amount to be
Commission [1999] ECR II-0000 — the President of the Court                        lodged by way of security per tonne of sugar will be increased
of First Instance made an order on 29 September 1999, the                         or reduced in the light of:
operative part of which is as follows:
1. On the grounds set out in the Order of the President of the Court              — any rise or fall in the intervention price referred to in
    of First Instance of 30 April 1999 in Case T-44/98 R II Emesa                      Article 3(1)(a) of Regulation No 1785/81;
 ---pagebreak--- C 352/36                EN                       Official Journal of the European Communities                                      4.12.1999
        — any rise or fall in the guaranteed price referred to in           residing at Hoeilaart (Belgium), represented by G. van der Wal,
             Article 5(4) of Protocol No 8 to the Fourth ACP-EC             of the Hague Bar, with an address for service in Luxembourg
             Convention, signed at Lomé on 15 December 1989;                at the Chambers of A. May.
        For the purposes of reducing or increasing the amount of            The applicant claims that the Court should:
        security to be lodged reference shall be made to the
        intervention price or the guaranteed price for 31 October           — declare the present application admissible;
        1999;
                                                                            — annul the defendant’s decision of 15 July 1999;
    — the security lodged shall be released in full, by Order of the
        Court hearing the application for interim relief, in favour of      — grant the applicant’s claim for damages and order the
        the Community, should the Court of Justice, in its forth-                 defendant to pay the applicant the sum of BEF 7 323 594,
        coming judgment in Case C-17/98, declare during the                       alternatively such sum as the Court shall consider fair and
        period between 31 October 1999 and 29 February 2000                       reasonable;
        that Article 108b is not invalid;
                                                                            — order the defendant to pay the costs.
    — for the duration of the interim measure so ordered, Emesa
        Sugar (Free Zone) NV may not submit any application for
        an import licence pursuant to Regulation No 2553/97.                Pleas in law and main arguments
3. In the event that the Court of Justice delivers its judgment in Case
    C-17/98 during the period between 31 October 1999 and                   The applicant, who was at the material time a member of
    29 February 2000:                                                       the temporary staff (interpreter) of the Commission, was
                                                                            unsuccessful in competition COM/LA/2/89 and was dismissed.
    — the present proceedings for interim relief (registered as Case
        T-44/98 R II) shall recommence should the Court of Justice          His application contesting the decision of the selection board
        hold that Article 108b of Decision 91/482 is not invalid,           was upheld (Case T-43/91). The decision dismissing him was
        and the parties shall be called upon to make known their            annulled on the ground that it was based on an unlawful
        views on the judgment of the Court of Justice; the decision of      decision of the selection board (Case T-51/91).
        the Court hearing the application for interim relief in the
        present proceedings shall be embodied in a new Order, it            The Court of First Instance did not declare the competition
        being indicated that Emesa Sugar (Free Zone) NV may                 void as such, but in paragraph 65 of its judgment in Case
        continue to import into the Community sugar which has               T-43/91 it stated that the applicant’s rights would be
        been delivered to it free on board (FOB) before the date of         adequately protected ‘if the institution seeks a just solution in
        delivery of the judgment of the Court of Justice (i) subject to     his case’.
        a ceiling of 7 500 tonnes (ii) within the period expiring on
        29 February 2000 and (iii) in conformity with the conditions
        set out in the second paragraph of the operative part of the        In consequence of the decision dismissing him, which was
        present Order;                                                      annulled by the Court of First Instance, the applicant has
                                                                            suffered material and non-material damage. By letter of 28 May
    — the present Order shall continue to produce its effects until         1998 the applicant’s lawyer pointed out that agreement had
        29 February 2000 should the Court of Justice hold that              still not been reached between the applicant and the defendant
        Article 108b of Decision 91/482 is invalid and should the           concerning, inter alia, that issue, and requested the defendant
        Court of First Instance have failed by that date to give            in that connection to adopt a decision pursuant to Article 90(1)
        judgment in the main proceedings (registered as Case                of the Staff Regulations of Officials.
        T-44/98).
                                                                            By letter of 1 October 1998 the defendant adopted the same
4. Costs are reserved.                                                      position as before. Consequently, by letter of 31 December
                                                                            1998, the applicant submitted a complaint pursuant to
                                                                            Article 90(2) of the Staff Regulations. The defendant rejected
                                                                            that complaint by letter of 15 July 1999.
                                                                            As a result of the aforesaid judgments of the Court of
                                                                            First Instance of 17 March 1994, a process of negotiation
Action brought on 17 September 1999 by P.E. Hoyer                           commenced between the parties, from which the defendant
  against the Commission of the European Communities                        has unilaterally withdrawn with regard to numerous points; it
                                                                            is now purporting to describe that unilateral withdrawal as an
                          (Case T-209/99)                                   ‘act adversely affecting’ the applicant, and is seeking to rely on
                                                                            it in order to show that the claim brought in the present
                                                                            proceedings concerns a ‘new application’, so that the applicant
                          (1999/C 352/64)                                   is out of time with his claim for compensation. According to
                                                                            the applicant, the defendant is unlawfully attempting to evade
                    (Language of the case: Dutch)                           its obligation to pay compensation for the damage suffered by
                                                                            him as a result of the decisions annulled in Cases T-43/91 and
                                                                            T-51/91.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 September 1999 by P.E. Hoyer,