Press and Information Division

PRESS RELEASE No 55/1996

26 November 1996

Judgment of the Court in Case C-68/95
T. Port GmbH & Co. KG v Bundesanstalt für Landwirtschaft und Ernährung

THE COURT OF JUSTICE RULES ON THE POWERS AND DUTIES OF NATIONAL COURTS IN THE MATTER OF INTERIM RELIEF AND ON HOW A BANANA IMPORTER'S HARDSHIP IS TO BE DEALT WITH

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The Court has held that where an importer of third-country bananas is suffering hardship, it is for the Community judicature and not the national courts to grant interim judicial relief if, pursuant to a Community regulation, the existence and extent of traders' rights must be determined by an act of the Commission which it has not yet adopted.

As from 1 July 1993 Council Regulation (EEC) No 404/93 of 13 February 1993 established the common organization of the market in bananas and introduced common arrangements for the importation of bananas, which replaced the various national arrangements. In accordance with the Community rules, Port, a traditional importer of third-country bananas, obtained from the Bundesanstalt licences to import third-country bananas for the second half of 1993 and for 1994 and 1995 on the basis of quantities sold during the reference years 1989, 1990 and 1991.

In 1994 Port, pleading that it was suffering hardship, requested additional licences from the Bundesanstalt. Port claimed that, owing to a Colombian supplier's breach of contract, it had been able to import only an unusually small quantity of bananas during the reference years. The Bundesanstalt refused to grant additional licences under the rules governing the importation of bananas.

The Court found that the Commission is required to take any transitional measures it judges necessary in order to deal with disturbances of internal markets which replacement of the various national arrangements by the common organization of the market might cause. In that regard, the Commission must also take into account the situation of traders who, under national legislation in force prior to adoption of Regulation No 404/93, took certain action without being able to foresee the consequences of such action after establishment of the common organization of the market. 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. The Commission is also authorized, where necessary, to derogate from reference period rules, and to do so to the advantage of individual traders.

However, if the Commission does not act, a national court may not grant traders interim judicial protection. Judicial review of the Commission's failure to act can be exercised only by the Community judicature. In a situation such as that in the main proceedings, only the Court of Justice or the Court of First Instance, as the case may be, can ensure judicial protection for the persons concerned.

In circumstances such as those in the main proceedings, it is for the relevant Member State, urged if necessary by the trader concerned, to request initiation of the procedure necessary in order to bring about the adoption by the Community of the specific measures which the trader's situation requires.

Furthermore, where a trader's economic survival is threatened by such hardship, he may also approach the Commission directly and request the adoption of specific measures.

Where the Community institution fails to act, the Member State and the trader concerned may bring an action for failure to act before the Court of Justice or the Court of First Instance. In the course of that action, the Community judicature could, at the applicant's request, adopt interim measures (Article 186 of the Treaty).