SA Piraiki-Patraiki and others v Commission of the European Communities.
Date: 1985-01-17
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 .
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 ' .
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 .
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 .
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 .