T. Port GmbH & Co. KG v Bundesanstalt für Landwirtschaft und Ernährung.
Date: 1996-11-26
23 In its order of 9 February 1995 the Hessischer Verwaltungsgerichtshof also referred the following questions to the Court for a preliminary ruling:
1. Does Article 16(3) or Article 30 of Council Regulation (EEC) No 404/93 of 13 February 1993 (OJ 1993 L 47, p. 1) put the Commission under a duty to deal with cases of hardship arising because operators of category A have difficulties in continuing trading owing to the fact that, on the basis of the reference years to be taken into account under Article 19(2) of that regulation, they are allocated an exceptionally low quota and cannot switch to the market for ACP and Community bananas?
2. Is Article 19(2) of Regulation (EEC) No 404/93 invalid in so far as it makes no provision for taking other reference years into account in cases of hardship in the transitional period?
3. In the event that one of the above two questions is answered in the affirmative: on what conditions is the national court authorized to take provisional measures in proceedings for the grant of interim relief until such time as hardship arrangements are introduced or Article 19 of Regulation (EEC) No 404/93 is amplified?
26 By its first question the Verwaltungsgerichtshof is essentially asking whether Article 16(3) or Article 30 of the Regulation requires the Commission to lay down rules catering for cases of hardship arising from the fact that importers of third-country bananas or non-traditional ACP bananas meet difficulties threatening their existence when an exceptionally low quota is allocated to them on the basis of the reference years to be taken into consideration under Article 19(2) of the Regulation.
27 As far as Article 16(3) of the Regulation is concerned, the Court has already held in its order of 29 June 1993 in Case C-280/93 R Germany v Council [1993] ECR I-3667, paragraph 44, that that provision requires the institutions to adjust the tariff quota if this proves necessary during a marketing year to take account of exceptional circumstances affecting import conditions in particular. In such a case, the adjustment is to be effected in accordance with the procedure laid down in Article 27, that is, it is for the Commission to adopt measures in accordance with the opinion of the Management Committee for Bananas. If the measures adopted are not in accordance with the opinion of that committee, the Council may take a different decision within one month.
31 That interpretation is confirmed by the scheme of the Regulation. The tariff quota established in Article 18(1) of the Regulation is drawn up on the basis of forecasts of production of Community bananas and imports of traditional ACP bananas and forecasts of total consumption of bananas in the Community. Consequently, an adjustment of that quota in the course of a marketing year is required only if production of Community bananas and imports of traditional ACP bananas do not reach the amounts forecast or if actual consumption of bananas in the Community exceeds those forecasts.
34 As regards Article 30 of the Regulation, the Court held, in its order in Case C-280/93 R Germany v Council, cited above, paragraphs 46 and 47, that, as appears from the 22nd recital in the preamble to the Regulation, that provision is intended to deal with any threatened disturbance in the internal market in consequence of replacement of the various national arrangements by the common organization of the market. For that purpose, Article 30 requires the Commission to take any transitional measures it judges necessary.
35 Application of Article 30 is subject to the condition that the specific measures which the Commission must adopt are intended to assist transition from national arrangements to the common organization of the market and that they are necessary for that purpose.
36 Those transitional measures must address difficulties encountered after establishment of the common organization of the market but originating in the state of national markets prior to adoption of the Regulation.
38 When assessing whether transitional measures are necessary, the Commission has a broad discretion, which is to be exercised in accordance with the procedure provided for in Article 27 of the Regulation. As the Court held in its order in Case C-280/93 R Germany v Council, cited above, paragraph 47, the Commission, or the Council, as the case may be, are, however, obliged to take action if the difficulties associated with the transition from national arrangements to the common organization of the market so require.
39 It is for the Court of Justice to review the lawfulness of the Community institutions' action or failure to act.
40 The Community institutions are required to act in particular when the transition to the common organization of the market infringes certain traders' fundamental rights protected by Community law, such as the right to property and the right to pursue a professional or trade activity.
42 As regards the subject-matter of the transitional measures, Article 30 provides for the adoption of any measures judged necessary. It therefore authorizes the Commission, where necessary, to derogate from the rules concerning the reference period laid down in Article 19 of the Regulation, and to do so to the advantage of individual traders.
43 The answer to the first question must therefore be that Article 16(3) of the Regulation does not allow the Commission to lay down rules catering for cases of hardship arising from the fact that importers of third-country bananas or non-traditional ACP bananas meet difficulties threatening their existence when an exceptionally low quota was allocated to them on the basis of the reference years to be taken into consideration under Article 19(2) of the Regulation.
On the other hand, Article 30 of the Regulation authorizes and, depending on the circumstances, requires the Commission to lay down rules catering for cases of hardship arising from the fact that importers of third-country bananas or non-traditional ACP bananas meet difficulties threatening their existence when an exceptionally low quota has been allocated to them on the basis of the reference years to be taken into consideration under Article 19(2) of the Regulation, where those difficulties are inherent in the transition from the national arrangements existing before the entry into force of the Regulation to the common organization of the market and are not caused by a lack of care on the part of the traders concerned.
The second question: validity of Article 19(2) of the Regulation
49 As the Court has held in particular in Zuckerfabrik, cited above, paragraph 18, references for preliminary rulings on the validity of a measure, like actions for annulment, allow the legality of acts of the Community institutions to be reviewed. In the context of actions for annulment, Article 185 of the EC Treaty enables applicants to request enforcement of the contested act to be suspended and empowers the Court to order such suspension. The coherence of the system of interim legal protection therefore requires that national courts should also be able to order suspension of enforcement of a national administrative measure based on a Community regulation, the legality of which is contested.
50 The Court also observed in Zuckerfabrik, paragraph 19, that in Case C-213/89 Factortame and Others [1990] ECR I-2433, which concerned the compatibility of national legislation with Community law, the Court had held, with reference to the effectiveness of Article 177, that the national court which had referred questions of interpretation for a preliminary ruling in order to enable it to decide that issue of compatibility had to be able to grant interim relief and to suspend application of the disputed national legislation until such time as it could deliver its judgment on the basis of the interpretation given in accordance with Article 177.
51 The interim legal protection which Community law ensures for individuals before national courts must remain the same, irrespective of whether they contest the compatibility of national legal provisions with Community law or the validity of secondary Community law, in view of the fact that the dispute in both cases is based on Community law itself (Zuckerfabrik, paragraph 20).
59 It is true that the third paragraph of Article 175 of the Treaty entitles legal and natural persons to bring an action for failure to act when an institution has failed to address to them any act other than a recommendation or an opinion. The Court has, however, held that Articles 173 and 175 merely prescribe one and the same method of recourse (Case 15/70 Chevalley v Commission [1970] ECR 975, paragraph 6). It follows that, just as the fourth paragraph of Article 173 allows individuals to bring an action for annulment against a measure of an institution not addressed to them provided that the measure is of direct and individual concern to them, the third paragraph of Article 175 must be interpreted as also entitling them to bring an action for failure to act against an institution which they claim has failed to adopt a measure which would have concerned them in the same way. The possibility for individuals to assert their rights should not depend upon whether the institution concerned has acted or failed to act.