C-213/01

Case C-213/01 P T. Port GmbH & Co. KG v Commission of the European Communities «(Appeal – Bananas – Imports from ACP States and third countries – Calculation of annual reference quantity allocated to operators – Imports in accordance with interim measures ordered by a national court in interlocutory proceedings – Action for damages)» Opinion of Advocate General Léger delivered on 26 November 2002 I - 0000      Judgment of the Court, 6 March 2003 I - 0000      Summary of the Judgment Agriculture – Common organisation of the markets – Bananas – Import arrangements – Tariff quota – Allocation – Determination of reference quantities on the basis of the actual imports of the various operators – Proof that imports have actually taken place – Proof that customs duties applicable were paid – Lack of probative force of proof of payment of customs duties at a level fixed provisionally by a national court in interlocutory proceedings (Commission Regulation No 2362/98, Arts 4 and 5(3), first subpara. (b)) Customs duties determined provisionally in interlocutory proceedings are not necessarily the customs duties which are applicable on the day on which customs import formalities are completed, proof of payment of which operators must, under Article 5(3), first subparagraph under (b), of Regulation No 2362/98, laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community, provide in order to demonstrate that the quantities of bananas which they wish to have included in the calculation of the annual reference quantity provided for in Article 4 of that regulation have actually been imported.see para. 20 JUDGMENT OF THE COURT 6 March 2003 (1) ((Appeal – Bananas – Imports from ACP States and third countries – Calculation of annual reference quantity allocated to operators – Imports in accordance with interim measures ordered by a national court in interlocutory proceedings – Action for damages)) In Case C-213/01 P, T. Port GmbH & Co. KG, established in Hamburg (Germany), represented by G. Meier, Rechtsanwalt, appellant, APPEAL against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) in Case T-52/99 T. Port v Commission [2001] ECR II-981, seeking to have that judgment set aside in part, the other party to the proceedings being: Commission of the European Communities, represented by K.-D. Borchardt and M. Niejahr, acting as Agents, with an address for service in Luxembourg,defendant at first instance, THE COURT,, composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet, R. Schintgen (Rapporteur) and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J. N. Cunha Rodrigues and A. Rosas, Judges, Advocate General: P. Léger, Registrar: R. Grass, having regard to the report of the Judge-Rapporteur, after hearing the Opinion of the Advocate General at the sitting on 26 November 2002, gives the following Judgment By application lodged at the Court Registry on 23 May 2001, T. Port GmbH & Co. KG ( T. Port) brought an appeal under Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance in Case T-52/99 T. Port v Commission [2001] ECR II-981 ( the judgment under appeal), seeking to have that judgment set aside in part. Legal background In the judgment under appeal, the Court of First Instance set out the legal background to the case as follows: Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1) introduced, from 1 July 1993, common arrangements for the importation of bananas, which replaced the various national arrangements. A distinction was drawn between Community bananas produced in the Community, third-country bananas originating in third countries other than the African, Caribbean and Pacific (ACP) States, traditional ACP bananas and non-traditional ACP bananas. Traditional ACP bananas and non-traditional ACP bananas meant the quantities of bananas exported by the ACP States which did not exceed or did exceed, respectively, the quantities traditionally exported by each of those States as set out in the Annex to Regulation No 404/93. In order to ensure satisfactory marketing of bananas produced in the Community and bananas originating in the ACP States and other third countries, Regulation No 404/93 provided for the opening of an annual tariff quota of 2.2 million tonnes (net weight) for imports of bananas from third countries and non-traditional ACP bananas. Article 19(1) of Regulation No 404/93 (old version) divided the tariff quota as follows: 66.5% for the category of operators who had marketed third-country and/or non-traditional ACP bananas (category A), 30% for the category of operators who had marketed Community and/or traditional ACP bananas (category B) and 3.5% for the category of operators established in the Community who had started marketing bananas other than Community and/or traditional ACP bananas from 1992 (category C). The first sentence of Article 19(2) of Regulation No 404/93 (old version) read as follows: On the basis of separate calculations for each of the categories of operators referred to in paragraph 1 ... each operator shall obtain import licences on the basis of the average quantities of bananas that he has sold in the three most recent years for which figures are available. Commission Regulation (EEC) No 1442/93 of 10 June 1993 laying down detailed rules for the application of the arrangements for importing bananas into the Community (OJ 1993 L 142, p. 6) defined, inter alia , the criteria for determining the types of operators in categories A and B who could apply for import licences, according to the activities which those operators had carried out during the reference period. Those import arrangements were the subject of a dispute settlement procedure within the framework of the World Trade Organisation (WTO) following complaints from some third countries. That procedure gave rise to reports from the WTO Panel of 22 May 1997 and a report from the WTO Standing Appellate Body of 9 September 1997, which was adopted by the WTO Dispute Settlement Body by decision of 25 September 1997. In that decision the Dispute Settlement Body declared certain aspects of the arrangements governing banana imports into the Community incompatible with the rules of the WTO. In order to comply with that decision, the Council adopted Regulation (EC) No 1637/98 of 20 July 1998 amending Regulation No 404/93 (OJ 1998 L 210, p. 28). The Commission subsequently adopted Regulation (EC) No 2362/98 of 28 October 1998 laying down detailed rules for the implementation of Council Regulation (EEC) No 404/93 regarding imports of bananas into the Community (OJ 1998 L 293, p. 32). Under the new arrangements for banana imports, the allocation of the quota between three different categories of operators was abolished. Regulation No 2362/98 provided that the quotas were to be divided merely between traditional operators and newcomers as defined in that regulation. The subdivision of operators into categories A and B depending on the types of activities which they carried out on the market was also abolished. Article 4 of Regulation No 2362/98 reads as follows: 1. Each traditional operator registered in a Member State in accordance with Article 5 shall receive, for each year and for all the origins listed in Annex I, a single reference quantity based on the quantities of bananas actually imported during the reference period. 2. For imports carried out in 1999 under the tariff quotas or as traditional ACP bananas, the reference period shall be made up of the years 1994, 1995 and 1996. Article 5(2) to (4) of Regulation No 2362/98 provides: 2. For the purposes of determining their reference quantity, each operator shall send to the competent authority by 1 July each year: (a) a figure for the total quantity of bananas from the origins listed in Annex I actually imported during each of the years making up the reference period; (b) the supporting documents detailed in paragraph 3. 3. Actual imports shall be attested by both of the following: (a) by presenting copies of the import licences used ... by the holder ... in order to release the relevant quantities for free circulation; and (b) by presenting proof of payment of the customs duties due on the day on which customs import formalities were completed. The payment shall be made either direct to the competent authorities or via a customs agent or representative. Operators furnishing proof of payment of customs duties, either direct to the competent authorities or via a customs agent or representative, for the release into free circulation of a given quantity of bananas without being the holder or transferee holder of the relevant import licence used for this purpose ... shall be deemed to have actually imported the said quantity provided that they have registered in a Member State under Regulation (EEC) No 1442/93 and/or that they fulfil the requirements of this Regulation for registration as a traditional operator. Customs agents or representatives may not call for the application of this subparagraph. 4. For operators established in Austria, Finland or Sweden, proof of the quantities released into free circulation in those Member States in 1994, and in 1995 up to the third quarter thereof, shall be furnished by presenting copies of the relevant customs documents and import permits issued by the competent authorities and duly used. Article 6(3) of Regulation No 2362/98 provides: Using the information received under paragraph 2, and in light of the total volume of tariff quotas and traditional ACP bananas as referred to in Article 2, the Commission shall, where appropriate, set a single adjustment coefficient to be applied to each operator's provisional reference quantity. Facts and procedure before the Court of First Instance The Court of First Instance set out the facts as follows in the judgment under appeal: [T. Port] is in the business of importing fruit and vegetables. Until the entry into force of Regulation No 2362/98 it was in Category A, and it is a traditional operator for the purposes of that regulation. By decision of the competent national authorities of 8 December 1998, the applicant's provisional reference quantity for 1999 was established at 13 709 963 kg and that quantity was reduced by 824 833 kg by application of the adjustment coefficient of 0.939837 set by the Commission under Article 6(3) of Regulation No 2362/98. In addition, the national authorities deducted from the quantities sought by the applicant, first, the quantities which it was alleged to have imported in 1994 into Austria, Finland and Sweden, that is to say, 898 692 kg, and, second, the quantity of third-country bananas, fixed at 9 838 861 kg, which it had been authorised to import by the Finanzgericht (Finance Court), Hamburg. As regards the last-mentioned quantity ( the quantity judicially determined ), the documents before the Court show that, by interim orders of 19 May and 8, 21 and 28 June 1995, the Finanzgericht Hamburg (Germany) directed the Hauptzollamt Hamburg-Jonas to authorise T. Port to release a total of 9 860 571 kg of bananas for free circulation, on payment of the customs duties of ECU 75 per tonne applying at the time to imports of third-country bananas under the tariff quota, a total of 9 860 571 kg of bananas, although the company concerned did not have the necessary import licences. In its order of 19 May 1995 the Finanzgericht Hamburg also decided to refer four questions to the Court of Justice for a preliminary ruling. The first three questions concerned the interpretation of Article 234 of the EC Treaty (now, after amendment, Article 307 EC), the validity of Commission Regulation (EC) No 478/95 of 1 March 1995 on additional rules for the application of Council Regulation No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13), and the direct effect of Articles I, II, III and XIII of the 1994 General Agreement on Tariffs and Trade ( GATT 1994), which appears in Annex I A to the Agreement establishing the World Trade Organisation ( the WTO Agreement), approved on behalf of the European Community by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). The fourth question concerned the circumstances in which a national court might order interim measures when it entertained doubts as to the applicability of the secondary Community law on which the legal assessment was based. The reference for a preliminary ruling from the Finanzgericht Hamburg was registered as Case C-182/95; it was initially suspended and then removed from the Court register by order of the President of the Court of Justice of 12 March 2001. The documents before the Court also show that after the Bundesfinanzhof (Germany) set aside those orders of the Finanzgericht Hamburg by decision of 22 August 1995, the Hauptzollamt Hamburg-Jonas, by decisions of 29 August and 1 September 1995, fixed the customs duty payable by T. Port at ECU 850 per tonne, which was the rate set at that time for imports outside the customs quota. Upon application by T. Port, the Finanzgericht Hamburg, by orders of 22 and 27 September 1995, decided that those decisions of the Hauptzollamt Hamburg-Jonas had to be temporarily suspended and that the suspension was not to be subject to the provision of security. By the same orders it referred three questions to the Court of Justice for a preliminary ruling that were identical in wording to those which it referred in Case C-182/95. That reference for a preliminary ruling gave rise to the judgment in Joined Cases C-364/95 and C-365/95 T. Port [1998] ECR I-1023. It was in those circumstances that T. Port, by application lodged on 19 February 1999, brought an action for damages under Article 178 in conjunction with the second paragraph of Article 215 of the EC Treaty (now, after amendment, Articles 235 EC and the second paragraph of Article 288 EC) seeking compensation from the Commission for the loss the latter had occasioned to the appellant by causing the national authorities to reduce, first, its reference quantity by applying the adjustment coefficient and, second, the quantities the applicant had applied for by the quantities imported in 1994 into Austria, Finland and Sweden and by the quantity judicially determined. In support of its action T. Port put forward a number of pleas, alleging that by its conduct the Commission had infringed, in the first place, GATT 1994 and the Agreement on Import Licensing Procedures and the General Agreement on Trade in Services (GATS), contained in Annexes 1A and 1B respectively to the WTO Agreement, secondly, the principle of equal treatment and, thirdly, the principles of protection of property and of legitimate expectations and the principle of proportionality. T. Port contended in particular that reducing the quantities which it had applied for by the quantity judicially determined was contrary to the principle of equal treatment. In the judgment under appeal the Court of First Instance summarised the arguments put forward by T. Port as follows: [T. Port] explains that the Finanzgericht Hamburg ruled by interim order that importation of the amount judicially determined should be approved without a licence provided the normal import duty was paid. The applicant had paid that duty. It observes that under Article 5(3) of Regulation No 2362/98 operators who, although they do not hold the import licence for the transaction concerned, furnish proof that they have paid the relevant customs duties are to be deemed to be the importers. The applicant considers it has furnished such proof, although it has no import licences, by means of the interim order of the Finanzgericht Hamburg mentioned above. It argues that, according to the principle of equal treatment, imports on the basis of an interim order of a national court should give rise to the same rights as those under licences. It is apparent from the judgment under appeal that the Commission challenged T. Port's argument on the following grounds: [The Commission] explains in this connection that amounts judicially determined may be allocated as reference quantities provided the import duties have actually been paid and the imports have actually taken place during the reference period, namely, in this case, between 1994 and 1996. The applicant's customs debt in respect of the amount judicially determined was, it is true, established by a decision of the competent national authority, but the Finanzgericht Hamburg ordered the suspension of the payment of that debt without stipulating that any security should be provided. It is not possible therefore to regard the customs debt as having been paid. Furthermore, the Commission notes that the quantity of bananas at issue was imported by the applicant without a licence and, hence, outside the tariff quota, which means that the full rate under the common customs tariff applies to them. So long as that customs duty remains unpaid it is not possible to take that quantity of bananas into account in calculating the reference quantity. The judgment under appeal In the judgment under appeal the Court of First Instance began by rejecting a plea of inadmissibility raised by the Commission and T. Port's plea alleging infringement of GATT 1994 and the other agreements referred to in paragraph 7 of this judgment. As regards the plea alleging infringement of the principle of equal treatment, the Court of First Instance, after rejecting certain arguments, in paragraph 88 of the judgment under appeal rejected the arguments concerning the reduction in the quantities applied for by the quantity judicially determined, as follows: Lastly, with regard to the applicant's contention that it could have a quantity of bananas determined by an interim order of the Finanzgericht Hamburg taken into account, suffice it to say that the Commission is entitled to require all imports which may be taken into account as reference quantities to be genuine imports. The quantity referred to by the applicant was imported outside the tariff quota and was therefore subject to the full rate under the common customs tariff. The payment of the relevant customs duties was then suspended by the interim order of the Finanzgericht Hamburg. In those circumstances, the applicant cannot ask for that quantity to be taken into account in determining its reference quantity. It is for the applicant to establish that the customs duties in question have actually been paid, which it has failed to do. In that connection, it should be added that the Commission stated at the hearing, and was not contradicted on this point, that it informed the competent German authorities that it would be necessary to take that quantity into account if the abovementioned duties are paid. After also rejecting the plea alleging infringement of the principles of protection of property, of the protection of legitimate expectations and of proportionality, the Court of First Instance found, in paragraph 106 of the judgment under appeal, that T. Port had failed to establish the existence of unlawful conduct for which the Community may incur non-contractual liability and that therefore the application had to be dismissed. Consequently, it ordered T. Port to bear its own costs and pay those of the Commission, as applied for by the latter. The appeal T. Port claims that the Court should set aside the judgment under appeal in so far as that judgment rejects the plea alleging that the Commission failed to take due account of the quantity judicially determined when calculating that company's reference quantity for 1997 to 1999 and order the company to pay all the costs. The Commission contends that the Court should dismiss the appeal as manifestly unfounded and order T. Port to pay all the costs in both cases. Arguments of the parties T. Port argues, first, that by requiring payment of the customs duty at the full rate of ECU 850 per tonne applicable to imports carried out outside the tariff quota, in order for the quantity judicially determined to be taken into account for the purpose of calculating the reference quantity, the Court of First Instance misdirected itself as to the scope of Article 5(2) and (3) of Regulation No 2362/98. Under those provisions the reference quantity must be established on the basis of all the imports in respect of which proof is presented of payment of the customs duties due on the day on which customs import formalities were completed. In the present case the customs duties due on the day of importation were the quota duty of ECU 75 per tonne, since the Finanzgericht Hamburg decided, in its interim orders, that the quantity judicially determined could be imported, even without import licences, on payment of those duties. The fact that the Bundesfinanzhof subsequently set aside those orders and the Hauptzollamt Hamburg-Jonas later amended its decision and set the customs duties payable by T. Port at the full rate applying to imports carried out outside the tariff quota is of no consequence in this respect. Secondly, T. Port contends that the quantity judicially determined must be regarded as having been imported under the tariff quota even though, following importation and payment of the customs duties, the ground on which the Finanzgericht Hamburg granted the interim measures sought proved to be unfounded. T. Port maintains in that regard that in its interim orders the Finanzgericht Hamburg complied with the limits which the case-law of the Court of Justice imposes on national courts in the ordering of interim measures and referred relevant questions to the Court for a preliminary ruling concerning Community law. It contends that the interim legal protection that national courts are authorised to grant to individuals would amount to nothing if those individuals could not confidently rely on the fact that the import transactions and the payment of customs duties determined by the customs authority have created a definitive factual framework. The Commission maintains that a national court must, even in interlocutory proceedings, take into account the incontestable rules of Community law and cannot replace them with particular, provisional rules. In deciding, provisionally, that bananas imported outside the tariff quota were subject only to the quota customs duty, the Finanzgericht Hamburg infringed the unambiguous provisions of Article 5(2) and (3) of Regulation No 2362/98, which require production of the relevant import licences in order for that customs duty to apply. The Commission contends that T. Port's argument that facts which occurred after the date of import are immaterial as regards determining the rate of the applicable customs duty would, were it valid, mean that any interim order made by a national court, even if it were unlawful, would make it possible to circumvent Community law. T. Port cannot rely in the present case on the case-law of the Court of Justice authorising national courts to order interim measures in case of doubt as to the validity of the Community law on which a national measure is based because the interim orders of the Finanzgericht Hamburg do not meet the prerequisites specified in that case-law. Findings of the Court In order to assess the merits of T. Port's arguments, it is sufficient to observe that it is clear from paragraphs 4 and 5 of this judgment that the importation of the quantity judicially determined on payment of customs duties of ECU 75 per tonne applying at the time to imports of third-country bananas under the tariff quota was authorised only as a temporary measure by the interim orders of the Finanzgericht Hamburg, which were based on doubts which that court entertained as to the validity of the relevant Community legislation, in the light in particular of GATT 1994. Interim measures ordered in interlocutory proceedings are granted only pending the final decision in the main proceedings, and without prejudice to that decision. Moreover, interim measures may themselves be challenged, and may be set aside or varied pending that decision, as was, moreover, the case in this instance, since the orders of the Finanzgericht Hamburg authorising the release of the quantity judicially determined for free circulation on payment of customs duties of ECU 75 per tonne were set aside by the Bundesfinanzhof. It follows that, contrary to what T. Port contends, customs duties determined provisionally in interlocutory proceedings are not necessarily the customs duties which are applicable on the day on which customs import formalities are completed and proof of payment of which operators must, under Article 5(3), first subparagraph under (b), of Regulation No 2362/98, provide in order to demonstrate that the quantities of bananas which they wish to have included in the calculation of the reference quantity provided for in Article 4 of that regulation have actually been imported. It also follows that the interim legal protection which national courts are authorised to grant to individuals in accordance with the case-law of the Court of Justice must not have the effect of creating a definitive factual framework which cannot be challenged subsequently. In those circumstances, it must be concluded that T. Port's arguments are unfounded and that its appeal must be dismissed. Costs Under Article 69(2) of the Rules of Procedure, applicable to appeals under Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs to be awarded against T. Port and the latter has been unsuccessful, it must be ordered to pay the costs. On those grounds, THE COURT hereby: 1. Dismisses the appeal; 2. Orders T. Port GmbH & Co. KG to pay the costs. Rodríguez Iglesias Puissochet Wathelet Schintgen Timmermans Gulmann Edward La Pergola Jann Skouris Macken Colneric von Bahr Cunha Rodrigues Rosas Delivered in open court in Luxembourg on 6 March 2003. R. Grass G.C. Rodríguez Iglesias Registrar President – Language of the case: French.