Sofrimport SARL v Commission of the European Communities.
Date: 1990-06-26
9 The applicant is directly concerned by the contested measures because Regulation No 962/88 requires the national authorities to reject pending applications for import licences and thus leaves them no discretion .
10 With regard to the question whether the applicant is individually concerned, it must be determined whether the contested measures affect it by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons ( see the judgment of 14 July 1983 in Case 231/82 Spijker v Commission (( 1983 )) ECR 2559, paragraph 8 ).
11 It should be observed first of all that the applicant is in the position referred to in Article 3(3 ) of Council Regulation ( EEC ) No 2707/72 of 19 December 1972 laying down the conditions for applying protective measures for fruit and vegetables ( Official Journal, English Special Edition 1972 ( 28 to 30 December ), p . 3 ) which requires the Commission, in adopting such measures, to take account of the special position of products in transit to the Community . Only importers of Chilean apples whose goods were in transit when Regulation No 962/88 was adopted are in that position . Those importers thus constitute a restricted group which is sufficiently well defined in relation to any other importer of Chilean apples and cannot be extended after the suspensory measures in question take effect .
16 Under the first subparagraph of Article 3(3 ) of Regulation No 2707/72, "the measures provided for in paragraph 1 shall take account of the special position of products in transit to the Community ". The effect of that provision is to enable an importer whose goods are in transit to rely on a legitimate expectation that in the absence of an overriding public interest no suspensory measures will be applied against him .
19 It must be held that the Commission has not in this case demonstrated the existence of any overriding public interest justifying the application of suspensory measures with regard to goods in transit .
25 With regard to legislative measures, the Court has defined the scope of that provision in particular in its judgment of 25 May 1978 in Joined Cases 83 and 94/76 and 4, 15 and 40/77 HNL v Council and Commission (( 1978 )) ECR 1209, paragraphs 4 to 6; see also the judgments of 4 October 1979 in Case 238/78 Ireks-Arkady v Council and Commission (( 1979 )) ECR 2955, paragraph 9, Joined Cases 241, 242 and 245 to 250/78 DGV v Council and Commission (( 1979 )) ECR 3017, paragraph 9 and Joined Cases 261 and 262/78 Interquell v Council and Commission (( 1979 )) ECR 3045, paragraph 12 . According to those judgments, the Community does not incur liability on account of a legislative measure which involves choices of economic policy unless a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred .
26 It should be observed first that the purpose of the first subparagraph of Article 3(3 ) of Regulation No 2707/72 is to protect traders who import goods covered by that regulation into the Community from the unfavourable consequences of protective measures which might be adopted by the Community institutions . That provision thus gives rise to a legitimate expectation the disregard of which constitutes a breach of that superior rule of law .
27 Secondly, it must be held that by failing completely to take account of the position of traders such as Sofrimport, without invoking any overriding public interest, the Commission committed a sufficiently serious breach of Article 3(3 ) of Regulation No 2707/72 .