232/81 R
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Not the law itself: Judgment
Address https://gelex.eu/eli/EU/judgment/61981O0232@1981-08-21/en
In Case 232/81 R 1. Agricola Commerciale Olio S.r.l., Ostuni (Brindisi), 56 Viale Pola; 2. Astolio S.r.l. Ostuni (Brindisi), 56 Viale Pola; 3. Azienda Agricola Bellaria S.P.A., Trecate (Novara), 76 Via San Cassiano; 4. Italiana Olii e Risi S.P.A., Aprilia (Latina), 44.4 km along the Strada Statale Pontina; 5. San Giorgio Sezione Agricoltura S.P.A., Pomezia (Rome), 23 km along the Via Laurentina, represented by Giuseppe Celona of the Milan Bar, Giovanni B. Compagno of the Rome Bar, Giuseppe Guarino of the Rome Bar, and Paolo M. Tabellini of the Milan Bar, all of whom have an address for service in Luxembourg at the Chambers of Georges Margue, Advocate, 20 Rue Philippe-II, applicants,v Commission of the European Communities, represented by Cesare Maestripieri, Principal Legal Adviser, acting as Agent, assisted by Guido Berardis, a member of its Legal Department, with an address for service in Luxembourg at the office of Oreste Montako, a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg, defendant, supported by Savma S.P.A., Milan, 6 Via Santa Maria Segreta, represented by Edouard Jakhian and Michel Mahieu of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Mr Arendt, Centre Louvigny, 34 Rue Philippe-II, intervener, APPLICATION to suspend the operation of Commission Regulations (EEC) Nos 2238/81 and 2239/81 of 3 August 1981 (Official Journal L 218 of 4. 8. 1981, p. 27 et seq.), The President of the Court of Justice of the European Communities makes the following
ORDER
Facts and Issues
I — On 12 January 1981 the Commission adopted Regulation (EEC) No 71/81 on the sale of olive oil held by the Italian intervention agency (Official Journal L 11 of 13. 1. 1981, p. 5). According to Article 1 of the regulation, the abovementioned intervention agency (Azienda di Stato per gli Interventi sul Mercato Agricolo, hereinafter referred to as AIMA) was to put up for sale some 33000 tonnes of virgin olive oil from intervention purchases made during the 1977/78 olive marketing year. That quantity was to be divided into six lots of approximately 5500 tonnes each (Article 2) and the selling price was fixed at LIT 210000 per 100 kg (Article 4 (1)). The sale was to commence on the tenth day following posting of the notice of sale and the allocation of the lots was to be carried out in the order of submission of applications to purchase, until those lots were all disposed of. In the event of applications to purchase being submitted on the same day for the same lot, AIMA was to designate as purchaser the applicant who submitted applications to purchase several lots or, where that was impossible, determine a purchaser by drawing lots. Purchasers were required to undertake to refine the oil purchased or not to offer it for sale on the Italian or Greek markets and to withdraw, as from 15 March 1981, in each period of thirty days, at least 10 % and at most 20 % of the purchased quantity (Article 8). Security was to be provided in order to guarantee performance of the various obligations. On 2 February 1981, that is to say on the first day of the period in which applications of purchase could be submitted, sixty undertakings submitted tenders, each covering all the lots put up for sale. The allocation of the lots was delayed following certain complaints and it was not until 1 June 1981 that the drawing of lots took place; the outcome was that the five applicants and the intervener in this case were designated as purchasers of the abovementioned lots. On 3 August 1981, the Commission adopted Regulation (EEC) No 2238/81 repealing, with effect from 13 January 1981, Regulation No 71/81. In the preamble to Regulation No 2238/81 the Commission relies on the fact that the sale was delayed by the inquiry into the complaints referred to above and that meanwhile the conditions on the olive oil market had altered so that to make the sale on the conditions originally laid down would have resulted in serious disturbance of the market. Accordingly, the Commission considered that the overriding general interest demanded the cancellation of the sale in question. On the same day the Commission adopted Regulation (EEC) No 2239/81 re-opening the sale by tender of the same quantity of olive oil held by the Italian intervention agency. The fresh sale is reserved for the six undertakings to which the lots were previously allocated (Article 3). The fresh sale is not, however, to be made at a fixed price but to the highest bidder and on condition that the price tendered is at least equal to a minimum price which is to be fixed not later than 31 August 1981, in accordance with the procedure provided for in Article 38 of Regulation No 136/66/EEC on the basis of the tenders received (Article 6). Tenders are to be submitted not later than 24 August 1981 at 2 p.m. (local time) (Article 4). The withdrawal of the oil purchased is to commence on 15 September 1981 at the same monthly rate (at least 10 %, but not more than 20 %) as that provided for previously (Article 9).
II — By application received at the Court Registry on 10 August 1981, the applicants in this case brought an action to have Commission Regulations Nos 2238/81 and 2239/81 of 3 August 1981 declared void. In support of their applications, they relied in particular on the following grounds : By a separate document, also received on 10 August 1981, the applicants submitted, in accordance with Article 185 of the EEC Treaty and Article 83 of the Rules of Procedure of the Court of Justice, an application to the President of the Court for an order to suspend forthwith the operation of Regulations Nos 2238/81 and 2239/81. In an interlocutory order of 20 August 1981 the President granted Savma S.p.A., the sixth purchaser of a lot sold in accordance with Regulation No 71/81, leave to intervene in support of the defendant's submissions in the present case.
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1. Infringement of Articles 189, 290 and 42 of the EEC Treaty and of the general principles governing the repeal of legislation, retroactivity, respect for vested rights and legal certainty;
2. Lack of competence and infringement of Articles 11 (5) and 38 (3) of Regulation (EEC) No 136/66;
3. Absence or inadequacy of reasons; conflict with previous decisions and conduct; mistake of fact and manifest illogicality;
4. Misuse of powers in that the real purpose of the contested measures is to act as a veil for a decision not to perform certain contracts which have been entered into and to promote the interests of a specific group of undertakings alleged to dominate the market in oils intended for refinement.
III — In support of their application for the adoption of interim measures, the applicants contend in particular that the submissions upon which they rely in their main action establish a prima facie case inasmuch as they refer to undisputed and indisputable facts, circumstances attested by various documents and fundamental and unquestionable principles of law. It is, moreover, a matter of the utmost urgency to suspend the operation of the contested measures since, according to the very terms of Regulation No 2239/81, the applications to purchase must be submitted before 24 August 1981 and the minimum selling price for each lot, on which the acceptance or rejection of those tenders will depend, must be fixed not later than 31 August 1981 (Article 6 of Regulation No 2239/81). The applicants also maintain that they cannot participate in the fresh invitation to tender on the ground that if they take part conditionally their tender would not be regarded as valid, whilst not to express any reservations would be tantamount to waiving their vested rights. Accordingly, they are faced with the imminent prospect of suffering considerable loss by the sale to third parties of goods to which they have acquired title by undertaking very heavy financial commitments. Finally, they add that the adoption of the protective measure sought by them would be in the interests of the defendant which has, in view of the manifest illegality of its conduct, laid itself open to very high claims for damages. In its reply, received at the Court Registry on 18 August 1981, the Commission contends that the conditions laid down by Article 83 (2) of the Rules of Procedure have not been fulfilled.
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(a) The application for the adoption of interim measures does not specify the factual and legal grounds establishing a prima facie case for the adoption of the interim measure applied for. The application to suspend the operation of Regulation No 2238/81, which repeals Regulation No 71/81, has no purpose in view of the fact that the repealing regulation takes effect immediately thus precluding any implementing measure in respect of which a suspension order may be sought. The applicants are in fact requesting the Court to suspend the repeal which lies beyond the powers of a court hearing an application for the adoption of interim measures. The purpose of such a request is identical to that of the main action. Accordingly, in so far as the application seeks to suspend the operation of Regulation No 2238/81, it is inadmissible. With regard to Regulation No 2239/81, the application to suspend its operation is somewhat surprising since it runs counter to the applicants' own interests. That regulation restricts to successful tenderers who participated in the cancelled sale the right to tender for the six lots of oil, though none of the undertakings may be allocated more than one lot. The only requirement is that the fresh tenders must be reasonable, having regard to the conditions on the market which must be reflected in the minimum price which has to be fixed. The applicants thus seek the adoption of a measure which is to their detriment.
(b) The Commission also contends that, by taking part in the new invitation to tender, the applicants would in no way surrender vested rights but could obtain the products for which they are competing with one another. If any other vested rights are being disregarded, they may still be relied upon in the proceedings on the substance of the case and possibly result in damages being awarded. According to a general legal principle, a person who sustains a loss is required to do everything within his power to mitigate it. In the present case, participation in the invitation to tender is the best, if not the only way to mitigate the alleged loss.
(c) Nothing has been done to establish the existence of circumstances giving rise to urgency; there is no proof that, unless the measure applied for is granted, serious and irreparable damage will be sustained in the imminent future. The operation of Regulation No 2238/81 does not inflict a serious and irreversible loss on the applicants pending the judgment on the substance of the case. With regard to Regulation No 2239/81, the applicants' contention that the goods would be sold to third parties is unfounded since the regulation in question restricts the invitation to tender to the successful undertakings which took part in the sale organized in accordance with Regulation No 71/81. According to the Commission, it is precisely a suspension of the operation of the regulation which would occasion the most serious loss, in view of the deterioration of the oil and the accumulation of storage costs.
(d) The Commission also contends that the five applicant undertakings are amongst the largest European operators in the sector, with the result that the potential loss which they allege could in no way jeopardize their commercial and financial situation, still less their existence. They are anxious to retain the large profit to which they claim to be entitled in the light of events. In the Commission's opinion, that aim cannot be taken into consideration in proceedings for the adoption of interim measures. In the event of the applicants' claim being upheld by the Court in its decision on the substance of the case, the right approach would be for the applicants to bring an action for damages in due time and in the appropriate place.
IV — The parties, including the intervener, were duly summoned and presented oral argument at the hearing on 20 August 1981.
Decision
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1 Under Article 185 of the EEC Treaty, actions brought before the Court of Justice do not have suspensory effect. The Court may, however, if it considers that the circumstances so require, order that application of the contested measures be suspended. It may also, under Article 186 of the Treaty, prescribe any necessary interim measures.
2 Under Article 83 (2) of the Rules of Procedure, the suspension of the operation of a measure and the decision to adopt interim measures are subject to the existence of conditions giving rise to urgency and of grounds establishing a prima facie case for the grant of such a measure.
3 Measures of that kind may be considered only if the factual and legal circumstances relied upon to obtain them establish a prima facie case for granting them. Moreover, they must be urgent in the sense that it is necessary for them to be adopted and to take effect before the Court gives its decision on the substance of the case in order to prevent the party which seeks their adoption from suffering serious and irreparable damage. Finally, the measures must be of an interim nature inasmuch as they must not prejudice the decision on the substance of the case.
4 The applicants rightly contend that the first of those conditions has been fulfilled. The purpose of the two regulations contested in the main action is to annul the legal effects of putting up for sale certain quantities of olive oil of which the applicants are to all appearances the rightful purchasers. The Commission itself admits that contracts of sale are involved and that their cancellation impairs the rights acquired thereunder. In that regard it refers to certain concepts relating to powers of expropriation without, however, at the present stage of the proceedings, specifying the legal basis of such powers under Community law. It also states that any rights vested in the applicants will be protected by procedures for compensation on the subject of which, however, the contested regulations are silent.
5 Without prejudice to the decision to be given on the main action, it appears that the challenge by the applicants to the legality of the Commission's measures, which have the scope and the effects described above, is based on serious considerations such as to make the legality of those measures seem doubtful to say the least.
6 With regard to the question of urgency and the need to prevent serious and irreparable damage, the applicants contend in the first place that under Regulation No 2239/81, the final date for the submission of fresh applications to purchase is 24 August 1981. They also maintained that they would not be able to participate in that sale by tender without harming their interests since if their tenders had been submitted conditionally they would not be regarded as valid, whereas if they were not made subject to any reservation, those tenders would entail a waiver of the rights which they acquired under the previous sale.
7 That argument is insufficient to justify suspending the operation of the contested measures. The Commission has agreed that formal note should be taken of its declaration that the applicants' participation in the invitation to tender provided for by Regulation No 2239/81 entails no waiver whatsover on their part of any rights which they may derive from the sale which took place under the repealed regulation. It is necessary to take formal note of that declaration for the benefit of the applicants and to take steps to enable them to participate, if they so desire, in the fresh tendering procedure on conditions such as to safeguard all their rights.
8 The applicants then contend that if they are required to take part in the planned invitation to tender notwithstanding the fact that they are the rightful owners of the goods under the previous sale, they will incur an extremely heavy financial burden in addition to the onerous commitments which they have already undertaken in order to acquire the quantities in question. They also state that the invitation to tender in which they have been requested to take part, although restricted to the six undertakings to which the lots were allocated under the cancelled sale, is organized in such a way that it is uncertain whether they will again be successful in purchasing one of the lots which was put up for sale the first time. They add that the economic effects of that uncertainty are aggravated by the difficulties which they would experience in procuring elsewhere the raw material which they require.
9 It is clear from those considerations that the applicants are actually faced with a serious and immediate loss, the effects of which cannot be offset by the prospect of an unspecified amount of compensation in the future when all the evidence suggests that they are being deprived of their property. The serious and irreparable nature of the loss alleged in support of an application to suspend the operation of certain measures or for the adoption of interim measures must be assessed in concreto. The mere fact that under the Community legal order an action for damages may be brought where loss has been sustained does not, contrary to the view apparently suggested by the Commission, necessarily mean that the alleged loss cannot be regarded as irreparable. In the present case, a comparison between the immediate adverse effects of the harm inflicted on the applicants' legal and economic situation and the compensatory effects of a future award of damages against the Community leads to the conclusion that there is justification for preventing, at least in part, an immediate loss by the adoption of interim measures instead of relying exclusively on the possibility of future compensation for the loss by means of an action for damages.
10 However, those considerations do not justify the suspension, without qualification, of the operation of the two contested regulations as sought by the applicants. According to the applicants themselves, such a measure should have the effect of compelling AIMA, by a court order if necessary, to deliver the lots of olive oil to the tenderers designated by lots on 1 June 1981 under the repealed regulation. Consequently, such a measure would in fact prejudge the outcome of the main action and deprive it of any purpose.
11 Furthermore, it has been established in the course of these proceedings for the adoption of interim measures that the six lots of olive oil put up for sale in accordance with Regulation No 71/81 are largely interchangeable although it may be that not all the lots contain oil of the same nature and quality. It is necessary in this regard to point out that when the goods were previously put up for sale, each of the applicants had offered to purchase the six lots and that the allocation of one lot to each applicant took place by the drawing of lots. Moreover, according to Article 6 of Regulation No 2239/81, the re-opening of the sale by tender is organized in such a way as to ensure that the six successful tenderers obtain only a single lot each.
12 Accordingly, it is necessary in order to avoid the loss described above to ensure, first, that the applicants may decide freely whether or not it is in their interest to take part in the fresh invitation to tender, without any failure to participate on their part depriving them of the possibility of relying upon a right to receive one of the lots in question. Secondly, it is necessary to ensure, if they decide to take part, that they may retain or acquire one of the lots put up for sale on financial terms which do not entail a provisional increase — at least an appreciable one — in the costs which they have incurred so far.
13 That outcome may, in substance, be arrived at if, first of all, care is taken to ensure that the lots put up for sale again cannot, if they are not acquired by one of the five applicants, be sold to third parties before the Court has ruled on the main action and if, secondly, the applicants may retain or acquire one of the lots in question on such terms as to ensure that the definitive financial burden is not borne by them until the Court has ruled on the main action.
14 Accordingly, in order to attain that objective, it is necessary to take formal note, by this order, of certain declarations by the Commission and to order the suspension of the operation of Regulation No 2239/81 within the limits set out below.
On those grounds, The President of the Court by way of interlocutory decision, hereby orders as follows :
1. Formal note is taken, for the benefit of the applicants, that the Commission has stated that the applicants' participation in the tendering procedure laid down by Commission Regulation (EEC) No 2239/81 of 3 August 1981 entails no waiver whatsoever on their part of any rights which they may derive from the sales which were cancelled by Commission Regulation (EEC) No 2238/81 of the same date repealing Commission Regulation (EEC) No 71/81 of 12 January 1981.
2. Formal note is taken, for the benefit of the applicants, of the Commission's statement that if one or more of the lots were not to be allocated under the tendering procedure in question, those lots would not be disposed of without a new decision by the Commission of which the applicants would be informed in due time. Consequently, the Commission is hereby prohibited from disposing of, or allowing the disposal of, any unallocated lots before the date on which judgment is given in the main action, unless permission is obtained from the President of the Court by means of an application for the adoption of an interim measure.
3. The application of Article 10 of Commission Regulation (EEC) No 2239/81 of 3 August 1981 shall be partially suspended inasmuch as the applicants who, subject to the abovementioned reservation of their vested rights, participate in the sale by tender by submitting applications to purchase not later than 2 p.m. on 24 August 1981 and who must be permitted to submit their tenders subject to the said reservation of their rights, shall, in respect of the lot to be allocated to each of them on the basis of their tenders, be required to pay to AIMA for each part of that lot, as referred to in Article 9 of the regulation, at the time of the withdrawal of that part, only so much of the price tendered as is equal to the amount which they would have had to pay under the terms of the sale undertaken under Regulation (EEC) No 71/81. Payment of the remainder shall be suspended until the Court has given judgment in the main action, unless in the meantime any amendment is obtained from the President of the Court by means of an application for the adoption of an interim measure. The Commission shall be responsible for ensuring that AIMA delivers the goods on the abovementioned conditions.
4. The guarantee to be provided under Article 4 (5) of Regulation (EEC) No 2239/81 of 3 August 1981 shall also be calculated on the basis of the amount to be paid on a provisional basis and not on the basis of the amount of any tender which may be accepted, as provided for by Article 6 of that regulation.
5. The remainder of the application is dismissed and the implementation of Commission Regulation (EEC) No 2239/81 of 3 August 1981 shall proceed subject to the abovementioned conditions.
6. The costs, including those of the intervention, are reserved.
Luxembourg, 21 August 1981. A. Van Houtte Registrar J. Mertens de Wilmars President