Antillean Rice Mills NV, European Rice Brokers AVV and Guyana Investments AVV v Commission of the European Communities.
Date: 1999-02-11
20 As regards the admissibility before this Court of the plea raised by the Italian Government, it must be borne in mind that under Article 49(2) of the EC Statute of the Court of Justice an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions before the Court of First Instance.  It follows that interveners before the Court of First Instance are regarded as parties before that court.  Article 115(1) of the Rules of Procedure of the Court of Justice, under which `any party to the proceedings before the Court of First Instance may lodge a response within two months after service on him of notice of the appeal', therefore applies to them, so that they are dispensed from having to make a fresh application to intervene before the Court of Justice under Articles 93 and 123 of the Rules of Procedure (Case C-244/91 P Pincherle v Commission [1993] ECR I-6965, paragraph 16).
21 It follows that, as regards the pleas they may raise, there is no distinction between the parties who are entitled to lodge a response, since they are subject in the same way to the requirements of Articles 115 and 116 of the Rules of Procedure.
22 Consequently, an intervener who has the right to submit a response under Article 115 of the Rules of Procedure must, in the absence of any express limitation, be able to raise pleas relating to any point of law on which the contested judgment is based.
25 As to the substance of the plea of inadmissibility, it must be noted that the Court deduced from Article 130(3) of the Act concerning the conditions of accession of the Hellenic Republic and the adjustments to the Treaties (OJ 1979 L 291, p. 17) that when adopting safeguard measures the Commission must, in so far as the circumstances of the case permit, inquire into the negative effects which its decision might have on the economy of that Member State as well as on the undertakings concerned, and concluded therefrom that those undertakings were to be considered as individually concerned by that decision (see Piraiki-Patraiki, paragraphs 28 and 31).
26 As the Court of First Instance rightly observed in paragraphs 68 and 70 of the contested judgment, the reasoning in Piraiki-Patraiki is also applicable in the present case, since the terms of Article 109(2) of the OCT Decision are substantially the same as those of Article 130(3) of the Act concerning the conditions of accession of the Hellenic Republic and the adjustments to the Treaties and the purpose of those provisions is similar, namely to define the level at which the Community may adopt safeguard measures.
27 Although that judgment concerned a decision which, unlike the OCT Decision which is addressed to all the Member States, was addressed to a single Member State, the Italian Government's argument that paragraph 32 of the judgment in Case C-209/94 P Buralux and Others v Council [1996] ECR I-615 rules out the application in the present case of the Court's reasoning in Piraiki-Patraiki cannot be accepted.
28 The judicial protection which an individual enjoys under the fourth paragraph of Article 173 of the Treaty cannot depend on whether the contested decision is addressed to one Member State or to several, but must be established on the basis of the specific situation of that individual compared to all other persons concerned. Unlike the Buralux case, which concerned only persons envisaged generally, the present case concerns clearly identifiable persons.  The Court of First Instance was therefore entitled to consider, in paragraph 77 of the contested judgment, that what matters for identifying the persons individually concerned by a decision introducing a safeguard measure is the protection enjoyed under Community law by the country or territory, and by the undertakings concerned, against which the safeguard measure is adopted.
29 As to the Italian Government's argument that the Court of First Instance erred in holding in paragraph 75 of the contested judgment that the evidence available to the Commission before the adoption of the contested decisions was specific and precise, given that at least two of the appellants had cargoes of rice in transit to the Community at the time when the first decision was adopted, that argument is based on questions of fact which are not amenable to review by this Court.  The Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts.  That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice (Case C-30/96 P Abello and Others v Commission [1998] ECR I-377, paragraph 49).
36 Here it must be borne in mind first that, as the Court has already held, association of the OCTs with the Community is to be achieved by a dynamic and progressive process which may necessitate the adoption of a number of measures in order to attain all the objectives mentioned in Article 132 of the Treaty, having regard to the experience acquired through the Council's previous decisions (Case C-310/95 Road Air v Inspecteur der Invoerrechten en Accijnzen [1997] ECR I-2229, paragraph 40).  It follows that although the OCTs are countries and territories which have special links with the Community, they do not, however, form part of the Community, and free movement of goods between the OCTs and the Community does not exist unrestrictedly at this stage, in accordance with Article 132 of the Treaty.
37 It must be pointed out, next, that the second paragraph of Article 136 authorises the Council to adopt decisions concerning the association on the basis of the principles set out in the Treaty.  It follows that when the Council adopts OCT decisions under that article, it must take account not only of the principles in Part Four of the Treaty but also of the other principles of Community law, including those relating to the common agricultural policy.
38 That conclusion is, moreover, consistent with Article 3(r) and Article 131 of the Treaty, which provide that the Community is to promote the economic and social development of the OCTs, but without that promotion implying an obligation to give them privileged treatment.
41 The argument that safeguard measures may be taken only under the conditions set out in Article 134 of the Treaty must also be rejected.  While the Court has held that that provision is intended to apply from the entry into force of the Treaty until the creation of a common customs area (Road Air, paragraph 36), Article 134 and the second paragraph of Article 136 pursue different aims, and the interpretation of the latter provision by the Court of First Instance therefore does not call into question the scope of the former provision.
42 The argument based on Article 132(1) of the Treaty cannot be accepted either.  As is apparent from its first sentence, that provision confines itself to fixing the objectives of the association of the OCTs by stating that trade with the OCTs is to be placed on the same footing as trade between the Member States (Road Air, paragraph 40).
47 On this point, it must be pointed out to begin with that, contrary to the appellants' submission, Article 109(1) of the OCT Decision does not necessarily require a causal link to be established in the second hypothesis referred to in that article, namely if difficulties arise which may result in a deterioration in a sector of the Community's activity or in a region of the Community. Admittedly, in the first hypothesis referred to in that article, namely if the application of the OCT Decision causes serious disturbances in a sector of the economy of the Community or one or more of its Member States or jeopardises their external financial stability, the existence of a causal link must be established because the purpose of the safeguard measures must be to iron out or reduce the difficulties which have arisen in the sector concerned.  In the second hypothesis, on the other hand, it is not a requirement that the difficulties which justify the imposition of a safeguard measure result from the application of the OCT Decision.
48 Next, it must be borne in mind that the Commission has been given a wide discretion in the application of Article 109 of the OCT Decision.  In cases involving such a discretion, the Court of First Instance 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 (Piraiki-Patraiki, paragraph 40).
52 First, as regards the principle of proportionality, it must be pointed out that, in order to determine whether a provision of Community law is in conformity with that principle, it must be ascertained whether the means which the provision applies are suitable for attaining the objective pursued and do not go beyond what is necessary in order to do so.
54 In that context, first, it cannot be maintained, as the appellants claim, that such a safeguard measure could not place rice from the Netherlands Antilles in an unfavourable competitive position in relation to Community rice.  It follows from the very essence of a safeguard measure that some imported products will be subjected to rules which are unfavourable in comparison with Community products.
57 It must be noted, first, that it is settled case-law that in a legislative context involving the exercise of a wide discretion, the Community cannot incur liability unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers (see, to that effect, Joined Cases 83/76, 94/76, 4/77, 15/77 and 40/77 HNL and Others v Council and Commission [1978] ECR 1209, paragraphs 4 and 6, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 25).
67 As regards the first part of this plea, contrary to the appellants' argument, a breach of Community law by an institution in a field in which it enjoys a wide discretion is not in itself sufficient for the non-contractual liability of the Community to be incurred, under the second paragraph of Article 215 of the Treaty, in respect of damage suffered by individuals (see, to that effect, HNL and Others, paragraphs 4 and 6).  Such an approach would render meaningless the criterion for establishing non-contractual liability and have the effect in the present case of disregarding the autonomous nature of the two remedies available to individuals in the event of an infringement of Community law.