JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

28 September 1999 (1)

(Bananas — Imports from ACP States and third countries —

Application for import licences — Case of hardship —

Transitional measures — Regulation (EEC) No 404/93)

In Case T-254/97,

Fruchthandelsgesellschaft mbH Chemnitz, a company incorporated under Germanlaw, established in Chemnitz (Germany), represented by Jürgen Mielke andThorsten W. Albrecht, Rechtsanwälte, Hamburg, with an address for service inLuxembourg at the Chambers of Entringer and Niedner, 34A Rue Philippe II,

applicant,

v

Commission of the European Communities, represented by Klaus-Dieter Borchardtand Hubert van Vliet, of its Legal Service, acting as Agents, with an address forservice in Luxembourg at the office of Carlos Gómez de la Cruz, of its LegalService, Wagner Centre, Kirchberg,

defendant,

supported by

Kingdom of Spain, represented by Rosario Silva de Lapuerta, Abogado del Estado,of the Community Legal Affairs Department, acting as Agent, with an address forservice in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,

and

French Republic , represented by Kareen Rispal-Bellanger, Head of Subdirectoratein the Legal Directorate of the Ministry of Foreign Affairs, acting as Agent, withan address for service in Luxembourg at the French Embassy, 8B Boulevard JosephII,

interveners,

APPLICATION for the annulment of the Commission Decision (VI/6251/97/DE)of 9 July 1997 rejecting the applicant's request for the grant of import licencesunder the transitional measures provided for in Article 30 of Council Regulation(EEC) No 404/93 of 13 February 1993 on the common organisation of the marketin bananas (OJ 1993 L 47, p. 1),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh, Judges,

Registrar: J. Palacio González, Administrator

having regard to the written procedure and further to the hearing on 20 April 1999,

gives the following

Judgment

Relevant provisions

1.

    Council Regulation (EEC) No 404/93 of 13 February 1993 on the commonorganisation of the market in bananas (OJ 1993 L 47, p. 1, 'Regulation No404/93‘) introduced a common system for the importation of bananas whichreplaced the various national arrangements. In order to ensure satisfactorymarketing of bananas produced in the Community and of products originating inthe African, Caribbean and Pacific (ACP) States and in other third countries,Regulation No 404/93 provides for the opening of an annual tariff quota forimports of 'third-country‘ bananas and 'non-traditional ACP‘ bananas. 'Non-traditional ACP bananas‘ means the quantities of bananas exported by the ACPStates which exceed the quantities traditionally exported by each of those States asset out in the Annex to Regulation No 404/93.

2.

    Each year a forecast supply balance is to be drawn up on production andconsumption in the Community and of imports and exports. The tariff quotadetermined on the basis of the forecast supply balance is to be allocated amongoperators established in the Community according to the origin and the averagequantities of bananas that they have sold in the three most recent years for whichfigures are available. On the basis of that allocation, import licences are to beissued which enable operators to import bananas free of customs duties or atpreferential rates of customs duty.

3.

    The 22nd recital in the preamble to Regulation No 404/93 is worded as follows:

'... the replacement of the various national arrangements in operation when thisregulation comes into force by this common organisation of the market threatensto disturb the internal market; ... the Commission, as of 1 July 1993, should be ableto take any transitional measures required to overcome the difficulties ofimplementing the new arrangements‘.

4.

    Article 30 of Regulation No 404/93 provides:

'If specific measures are required after July 1993 to assist the transition fromarrangements existing before the entry into force of this Regulation to those laiddown by this Regulation, and in particular to overcome difficulties of a sensitivenature, the Commission ... shall take any transitional measures it judges necessary.‘

Facts and procedure

5.

    The applicant, Fruchthandelsgesellschaft mbH Chemnitz('Fruchthandelsgesellschaft‘), is a fruit-trading company which was originallyknown as VEB Großhandelsgesellschaft OGS Karl-Marx-Stadt('Großhandelsgesellschaft‘), a previously State-owned undertaking in the former

German Democratic Republic ('GDR‘). Großhandelsgesellschaft was privatisedunder the name of 'Fruchthandelsgesellschaft mbH Chemnitz‘ and administeredby the Treuhandanstalt, the body established under public law responsible forrestructuring previously State-owned undertakings in the former GDR.

6.

    In 1990, the Treuhandanstalt arranged for the company's ripening facilities, whichhad become obsolete, to be renovated. However, the new facilities, which had anannual capacity of 14 750 tonnes, ripened only 5 000 tonnes of bananas between1991 and 1993. In April 1993, the Treuhandanstalt decided to terminate theoperation of the ripening plant.

7.

    By contract dated 17 December 1993, Fruchthandelsgesellschaft mbH Chemnitzwas sold to Peter Vetter GmbH Fruchtimport + Agentur. Under the contract ofsale, it was decided, inter alia, that the company's business name could be retainedand that all the employees would be kept on. It was also agreed that, until 31December 1996, the purchaser undertook not to dispose of any essentialoperational element of the part-undertaking without the prior consent of theTreuhandanstalt, and to continue to run it on the basis of the commercial objectsas they then stood for a period of at least three years as from the day of thetakeover. Finally, the purchaser undertook to make investments totalling DM 1million.

8.

    The building of new facilities, including a ripening plant, began in 1995. It requiredan investment of approximately DM 8.5 million and made possible a productioncapacity of 10 500 tonnes of bananas per year.

9.

    Following completion of the new ripening facilities, the applicant submitted to theCommission, by letter of 18 December 1996, an application for the special grantof licences for the importation of bananas under the tariff quota, pursuant toArticle 30 of Regulation No 404/93.

10.

    By decision (VI/6251/97/DE) of 9 July 1997, the Commission rejected thatapplication ('the contested decision‘).

11.

    That decision stated inter alia:

'... Fruchthandelsgesellschaft has described the facts as follows: the undertakingwas formed on 1 January 1994; it had previously been a Treuhand undertakingwhich was closed down in April 1993 following a decision of the Treuhandanstalt;its banana-ripening facilities were wound up by the Treuhandanstalt in 1994; inDecember 1994, the undertaking purchased from the Treuhandanstalt a plot ofland on which it had a banana-ripening plant built; banana ripening in that plantbegan in July 1996; the undertaking has a capacity of 10 500 tonnes per year;

... Article 30 of Regulation (EEC) No 404/93 authorises and, depending on thecircumstances, requires the Commission to lay down rules catering for cases of

hardship arising from the fact that importers of third-country bananas or non-traditional ACP bananas meet difficulties threatening their existence when anexceptionally low quota has been allocated to them on the basis of the referenceyears to be taken into consideration under Article 19(2) of the regulation, wherethose difficulties are inherent in the transition from the national arrangementsexisting before the entry into force of the regulation to the common organisationof the market and are not caused by a lack of care on the part of the tradersconcerned;

...

... Regulation (EEC) No 404/93 was published in the Official Journal of theEuropean Communities on 25 February 1993 and entered into force on 1 July 1993;... the proposal relating to the introduction of a common organisation of the marketin bananas was published on 10 September 1992;

... Fruchthandelsgesellschaft was formed after the aforementioned dates; ...Fruchthandelsgesellschaft cannot therefore have acted without being able to foreseethe consequences of so acting once the common organisation of the market inbananas had been introduced;

... the steps taken by the Treuhandanstalt before the date on whichFruchthandelsgesellschaft was formed cannot be regarded as steps taken byFruchthandelsgesellschaft;

... in accordance with the criteria laid down by the Court of Justice, it is notpossible to regard the situation of [Fruchthandelsgesellschaft] as a case of hardshipand ... the application for the special grant of import licences must therefore berefused;

...‘.

Procedure and forms of order sought by the parties

12.

    By application lodged on 17 September 1997, the applicant brought the presentaction.

13.

    On 16 January and 17 February 1998 respectively, the Kingdom of Spain and theFrench Republic applied for leave to intervene in the case in support of the formof order sought by the Commission. Those applications were granted by orders ofthe President of the Fourth Chamber of 17 June 1998. By statements lodged on 30July and 3 September 1998 respectively, the Kingdom of Spain and the FrenchRepublic submitted their observations.

14.

    Upon hearing the Report of the Judge-Rapporteur, the Court decided to open theoral procedure. As a measure of organisation of procedure provided for in Article64 of the Rules of Procedure, the Commission was requested to produce the reportof 9 September 1997 drawn up by the Standing Appellate Body of the World TradeOrganisation (WTO) on the common organisation of the market in bananas.

15.

    The parties and the Kingdom of Spain, intervening, presented oral argument andanswered the questions put by the Court at the hearing on 20 April 1999.

16.

    Fruchthandelsgesellschaft, the applicant, claims that the Court should:

—    annul the contested decision;

—    order the Commission to pay the costs.

17.

    The Commission, the defendant, contends that the Court should:

—    dismiss the application;

—    order the applicant to pay the costs.

18.

    The Kingdom of Spain, intervening, contends that the Court should dismiss theapplication.

19.

    The French Republic, intervening, contends that the Court should dismiss theapplication.

The claim for annulment

20.

    The applicant raises a single plea in law in support of its action, alleginginfringement of Article 30 of Regulation No 404/93 and misuse of powers. In itsreply, the applicant stated that its action might have been rendered devoid ofpurpose by the effects of the report delivered by the WTO's Standing AppellateBody on 9 September 1997 and adopted by the WTO's Dispute Settlement Bodyon 25 September 1997. At the hearing, it claimed that it still had an interest inhaving the contested decision annulled and that such annulment might be based onthe decision of the Dispute Settlement Body.

The effects of the Standing Appellate Body's report of 9 September 1997 and of theDispute Settlement Body's decision adopting that report

Arguments of the parties

21.

    The applicant maintains that the report, delivered on 9 September 1997 by theStanding Appellate Body and adopted by the Dispute Settlement Body on 25September 1997, declared that the system of licences for the importation of third-country bananas introduced by Regulation No 404/93 was contrary to the GeneralAgreement on Tariffs and Trade ('GATT‘) in various respects and could not, inits present form, be implemented in a manner consistent therewith.

22.

    In the applicant's submission, the mandatory decisions of the Dispute SettlementBody might have direct effect in Community law.

23.

    The Commission considers that, even if the decision of the Dispute SettlementBody were recognised as having direct effect, it would have no effect on theapplicant's situation. That decision does not in any way call into question theexistence of the tariff quota for third-country bananas and non-traditional ACPbananas. In any event, even if the present import licence arrangements did notapply, it has not been established whether, and to what extent, the applicant couldbe granted import licences under the tariff quota as a banana-ripening company.The applicant is not therefore personally entitled to participate in the tariff quotaby virtue of either the rules of GATT, the decision of the Dispute Settlement Bodyor the rules of Community law.

24.

    At the hearing, the Kingdom of Spain supported the Commission's position bystating, inter alia, that the only effect of a finding by the Standing Appellate Bodythat a measure is incompatible with a WTO agreement is to recommend that theMember in question bring its legislation into compliance with the agreement. Sucha finding would not require the Member concerned to amend its legislation becauseArticle 22 of the Understanding on rules and procedures governing the settlementof disputes (OJ 1994 L 336, p. 234) also provides the possibility for the complainingparty to obtain compensation and to secure the suspension of concessions.

25.

    Furthermore, the Court of Justice has held that GATT, by its very nature, cannothave direct effect and does not make it possible to call into question the validityof a Community rule. Such an effect would, moreover, be tantamount to anexception to the jurisdictional monopoly conferred on the Court of Justice byArticle 164 of the EC Treaty (now Article 220 EC).

Findings of the Court

26.

    It must be made clear that the Standing Appellate Body's report of 9 September1997, adopted by the Dispute Settlement Body on 25 September 1997, does not callinto question the tariff quota system as such. That report concluded that there werecertain discriminatory elements in the arrangements introduced by Regulation No404/93, but did not find the arrangements as a whole to be incompatible withGATT or with the General Agreement on Trade in Services (GATS). The

Commission accordingly adopted amendments to the arrangements introduced byRegulation No 404/93 with a view to bringing them into compliance with thatreport and with the decision of the Dispute Settlement Body [see CouncilRegulation (EC) No 1637/98 of 20 July 1998 amending Regulation (EEC) No404/93 (OJ 1998 L 210, p. 28)].

27.

    Consequently, the applicant cannot rely on the report and the decision in questionin order to claim that the arrangements establishing a common organisation of themarket in bananas no longer exist.

28.

    Furthermore, the applicant has not established a link in law between the decisionof the Dispute Settlement Body and this action.

29.

    It is clear from the Community case-law that, in order for a provision in a decisionto have direct effect on a person other than the addressee, that provision mustimpose on the addressee an unconditional and sufficiently clear and preciseobligation vis-à-vis the person concerned (see the judgments of the Court of Justicein Case 9/70 Grad v Finanzamt Traunstein [1970] ECR 825, paragraph 9; Case104/81 Kupferberg [1982] ECR 3641, paragraphs 22 and 23; and Case C-280/93Germany v Council [1994] ECR I-4973, paragraph 110).

30.

    The applicant has not put forward any arguments to support the view that thosecriteria are met. Its argument concerning the effects of the Standing AppellateBody's report and the Dispute Settlement Body's decision must therefore berejected as unfounded, without there being any need to consider whether themandatory decisions of the Dispute Settlement Body have direct effect.

The plea in law alleging infringement of Article 30 of Regulation No 404/93 andmisuse of powers

Arguments of the parties

31.

    The applicant argues that the contested decision infringes Regulation No 404/93,in particular Article 30 thereof, and that the Commission is guilty of misuse ofpowers.

32.

    The Commission is thus said to have disregarded the conditions laid down in thejudgment of the Court of Justice in Case C-68/95 T. Port v Bundesanstalt fürLandwirtschaft und Ernährung [1996] ECR I-6065 with regard to cases of hardship.

33.

    In the first place, the applicant maintains that the contested decision incorrectlyassesses the facts in that it takes the view that its difficulties are attributable to itsconduct. The decision of the Treuhandanstalt to suspend banana ripening in April1993 was, it submits, an exceptional circumstance for which it is not responsible.That suspension should not be taken into account in determining its rights in

respect of the grant of import licences inasmuch as it was the successor toGroßhandelsgesellschaft. In the light of the special situation of the new Länder, itsbanana quota should be calculated on the basis of the capacity of that undertaking.

34.

    Moreover, the decision to close the banana-ripening plant in April 1993 was takennot in order to meet a long-term commercial objective but to attract potentialinvestors. Since modernisation did not meet with the desired success, in January1993, the applicant company was placed under the administration of theTreuhandanstalt's 'Liquidation‘ department, whose only task was to draw up aredundancy programme for the employees and to dispose of the undertaking'sassets.

35.

    The applicant emphasises that it saw the building of the banana-ripening plant asan essential condition of its long-term continued presence on the market. It is theonly wholesaler within a 100-km radius to have a full range of produce and hasalways maintained a basic supply of fruit and vegetables for the local population,as the evidence of one of its clients' employees confirms.

36.

    Against that background, the applicant maintains that all the major fruit tradersand wholesalers in the former Länder who offer a full range of produce have theirown banana-ripening plants. In so far as the Commission disputes this, theapplicant requests that an expert's report be drawn up.

37.

    Finally, in taking as reference quantities for the purpose of granting import licencesthe quantities of bananas ripened in the former ripening plant during the years1991, 1992 and 1993, the Commission recognised that there had been continuity inthe ripening business after Großhandelsgesellschaft was privatised.

38.

    In those circumstances, the applicant submits that it cannot be pleaded that it wasaware of Regulation No 404/93 at the time when its new banana-ripening plant wasbuilt in 1995. If application of that regulation were to force it to terminate itsripening business permanently, that would amount to a prohibition against pursuinga trade or business which would threaten its existence and lead to the redundancyof many workers who specialised primarily in banana-ripening operations. Theeffect of this, ultimately, would be to exclude from banana-ripening activities on along-term basis all previously State-owned fruit-trading undertakings from theformer GDR that were restructured and modernised between 1990 and 1995, whichin turn would result in the emergence of protectionism within the Community.

39.

    Secondly, the applicant states that its difficulties are inherent in the implementationof the common organisation of the market in bananas. The reference perioddefined by that system is a discriminatory criterion in so far as, during the yearstaken into account, it stood no chance of achieving a satisfactory turnover. It isnone the less treated in exactly the same way as all other fruit-trading undertakingsin the Community.

40.

    In its reply, it goes on to say that, by the same token, previously State-ownedundertakings in the former GDR cannot be treated in the same way asundertakings now establishing themselves in the new Länder. Contrary to theCommission's argument, a previously State-owned undertaking in the former GDRwhose banana-ripening business is hampered by difficulties which have arisen sincereunification and which is forced to suspend that activity temporarily is in a verydifferent situation from that of a trader starting up from scratch. Unlike the latter,the applicant entered into long-term delivery obligations before the entry into forceof the common organisation of the market in bananas and has retained a largestaff. The new trader exposes himself to an incomparably smaller economic risksince he can adjust his staffing policy to the size of the import licences issued tohim.

41.

    Thirdly, the applicant maintains that the contested decision adversely affects itsproperty rights and the freedom to pursue a trade or business. The refusal to grantit additional licences jeopardises the pursuit of its business and, as a wholesaleroffering a full range of produce, it has an indispensable need for banana-ripeningfacilities.

42.

    The Commission argues that the Treuhandanstalt's decision to close the ripeningplant was taken as part of its administration of Fruchthandelsgesellschaft mbHChemnitz. It was not taken in anticipation of the forthcoming entry into force ofthe common organisation of the market in bananas. It is therefore impossible toinfer a case of hardship from the particular difficulties experienced byFruchthandelsgesellschaft between 1989 and April 1993.

43.

    The only circumstance which the applicant might put forward as constituting a caseof hardship is the fact that, in 1995 and 1996, it built, at considerable investmentcost, a new banana-ripening plant with a capacity of 10 500 tonnes per year whichit is unable to operate at full strength and at a profit because it has not beenawarded the import licences it needs by reason of the arrangements introduced byRegulation No 404/93.

44.

    However, the difficulties encountered by the applicant as a result of that situationare due to a lack of care on its part, since it built a new banana-ripening plant ayear and a half after the entry into force of the common organisation of the marketin bananas, without knowing how it would be able to operate the plant,notwithstanding that it was fully aware of the rules relating to the reference period.

45.

    In this connection, the Commission disputes the applicant's argument that it wasentitled to expect that special rules to accommodate the specific situation of thenew Länder would be adopted. It states that the applicant knew as early asDecember 1993, when it acquired Fruchthandelsgesellschaft mbH Chemnitz, thenadministered by the Treuhandanstalt, that the 'banana-ripening‘ sector had beenabandoned and that, in 1996, it would not be able to argue that the opening of anew banana-ripening facility was the continuation of the ripening business carried

on by Großhandelsgesellschaft or by Fruchthandelsgesellschaft mbH Chemnitzunder the administration of the Treuhandanstalt.

46.

    It explains that the applicant did indeed obtain import licences on the basis of thequantities of bananas ripened in the former ripening plant during the years 1991,1992 and 1993, before that plant was closed.

47.

    However, this does not mean that the applicant may rely onGroßhandelsgesellschaft's former ripening activities. The rights transferred to it areconfined to the reference period.

48.

    As regards the applicant's argument that, as a wholesaler offering a full range ofproduce, it had an indispensable need for banana-ripening facilities, theCommission submits that this fact does not put it in a special legal situation asregards the market. Moreover, the applicant is wrong when it says that bananaripening is an essential condition of its long-term continued presence on themarket, because the rules of the common organisation of the market in bananasdo not apply to the commercial activities of ripening plants. If the latter are notable to import and ripen third-country or non-traditional ACP bananas themselves,they can ripen 'foreign‘ bananas, that is to say bananas imported by otherimporters, without the slightest legal restriction.

49.

    With regard to the claim that the reference period is discriminatory, theCommission submits that the difficulties connected with the privatisation ofGroßhandelsgesellschaft do not put the applicant in a special situation entitling itto be treated differently from other undertakings trading in fruit. As far as the'banana-ripening‘ sector is concerned, the applicant is in the same situation as anyother fruit-trading undertaking which began that activity after the entry into forceof the rules of the common organisation of the market in bananas.

50.

    Furthermore, the difficulties connected with the privatisation process which allundertakings in the former GDR encountered after reunification do not fall withinthe scope of Article 30 of Regulation No 404/93, in so far as the Court of Justiceheld in its judgment in T. Port, cited above, that the conditions required for theCommission to be able to lay down rules catering for cases of hardship under thatarticle relate exclusively to individual cases. In this regard, the Commission alsorefers to the order of the President of the Court of First Instance in CaseT-79/96 R Camar v Commission [1997] ECR II-403.

51.

    As regards the applicant's claim that the transition to the common organisation ofthe market in bananas infringes its fundamental right to pursue its trade freely, theCommission points out that it is settled case-law that freedom to pursue aneconomic activity is one of the general principles of Community law, but is not anabsolute prerogative and must be considered in relation to its social function (seeCase T-521/93 Atlanta and Others v European Community [1996] ECR II-1707,

paragraph 62). Moreover, the guarantees accorded to traders cannot in any eventbe extended to protect mere commercial interests or opportunities the uncertaintiesof which are part of the very essence of economic activity (see the judgment of theCourt of Justice in Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14).The import licences claimed by the applicant in order to ensure its volume ofbusiness are not therefore protected by the fundamental right freely to pursue aneconomic activity.

52.

    Finally, as regards the right to protection of property relied on by the applicant, theCommission submits that, while the application of the rules of the commonorganisation of the market in bananas may indeed place in jeopardy the existenceof the entire undertaking, that risk is attributable to the decision taken by theapplicant itself, which, although fully aware of the legal framework laid down by thecommon organisation of the market in bananas, none the less invested in theconstruction of a new ripening plant without any guarantee as to its profitablity.

53.

    The Kingdom of Spain, in support of the arguments put forward by theCommission, points out, inter alia, that the possibility of adopting the transitionalmeasures provided for in Article 30 of Regulation No 404/93 is intended, accordingto the 22nd recital in the preamble to that regulation, to address the disturbancesin the internal market which may arise as a result of the various nationalarrangements being replaced by the common organisation of the market. It is nonethe less not intended to solve the wide range of problems which may, for otherreasons, be encountered by undertakings trading in the banana sector.

54.

    In particular, the difficulties which the applicant claims to have experienced are notdue to the entry into force of the common organisation of the market in bananasand do not correspond to the objective pursued by the transitional measuresprovided for in Article 30 of Regulation No 404/93.

55.

    The Kingdom of Spain observes in this respect that failure to satisfy therequirements laid down by Article 30 of Regulation No 404/93 for grantingtransitional measures could have the effect of altering the entire system of bananaimports into the Community, of prejudicing the rights of affected traders in thesector and consequently of upsetting the balance of interests established by theprovisions of the common agricultural policy concerning the common organisationof the market in bananas (see the order in Camar v Commission, cited above,paragraph 47).

56.

    The Kingdom of Spain also disputes the applicant's claim relating to misuse ofpowers by submitting that, in the present case, the Commission did not adopt thecontested decision in order to attain an objective other than that provided for, butmerely applied Article 30 of Regulation No 404/93 as interpreted by the Court ofJustice.

57.

    As regards the principle of equality, the Kingdom of Spain submits that theCommission acted correctly and in a manner consistent with that principle intreating the applicant in the same way as it treats all undertakings trading in third-country and non-traditional ACP bananas.

58.

    The French Republic points out, first of all, that it is clear from the terms used bythe applicant in its application that its difficulties do not satisfy the conditions forgiving effect to Article 30 of Regulation No 404/93, as defined by the Communityjudicature, but stem from a decision taken by the undertaking after the entry intoforce of the common organisation of the market.

59.

    The French Republic states, next, that the Commission was right to take the viewthat the applicant did not succeed to all of the rights enjoyed byGroßhandelsgesellschaft. As the applicant acknowledges, the contract of saleconcluded on 17 December 1993 with the Treuhandanstalt does not contain anyclause relating to a ripening plant.

60.

    In other words, the applicant took the decision to build a new ripening plant afterthe entry into force of the common organisation of the market in bananas in fullknowledge of the tariff quota arrangements laid down by that system.

Findings of the Court

61.

    Article 30 of Regulation No 404/93 empowers the Commission to take specifictransitional measures 'to assist the transition from arrangements existing before theentry into force of [the] Regulation to those laid down by this Regulation, and inparticular to overcome difficulties‘ caused by that transition. According to settledcase-law, those transitional measures are intended to deal with disturbances in theinternal market brought about by the replacement of the various nationalarrangements by the common organisation of the market and their purpose is toaddress difficulties encountered by traders following the establishment of thecommon organisation of the market but originating in the state of national marketsprior to the entry into force of Regulation No 404/93 (see the order of the Courtof Justice in Case C-280/93 R Germany v Council [1993] ECR I-3667, paragraphs46 and 47; the judgments of the Court of Justice in T. Port, cited above, paragraph34, and Joined Cases C-9/95, C-23/95 and C-156/95 Belgium and Germany vCommission [1997] ECR I-645, paragraph 22; and the order in Camar vCommission, cited above, paragraph 42).

62.

    The Court of Justice has held that the Commission must in this regard take intoaccount the situation of traders who, under national legislation in force prior toRegulation No 404/93, took certain action without being able to foresee theconsequences of such action after establishment of the common organisation of themarket (see the judgment in T. Port, cited above, paragraph 37).

63.

    It is on the basis of that criterion that the Commission states in the contesteddecision (see paragraph 11 above) that the applicant undertaking was formed cameafter the proposal relating to the establishment of the common organisation of themarket in bananas, which was published on 10 September 1992, and after thepublication of Regulation No 404/93 in the Official Journal of the EuropeanCommunities on 25 February 1993, and that the applicant cannot, therefore, haveacted without being able to foresee the consequences which its action would haveafter the establishment of the common organisation of the market in bananas.

64.

    The applicant does not dispute that, in 1995, it built a new ripening plant in whichit was possible to begin banana ripening in July 1996. In fact, it was the applicantwho provided the Commission with that information in its request for additionallicences on 18 December 1996.

65.

    The applicant stated at the hearing that the building of a new ripening plant hadbeen planned for a long time and that the closure of the former ripening facilitywas merely a temporary suspension of the ripening business. Talks on the buildingof the new ripening plant are said to have started as early as 1990, even though thedecision to close the former ripening plant was not taken until 1993.

66.

    The fact is, however, that that information, which was not forwarded to theCommission at the time of the contested decision, is not supported by any evidence.It should be pointed out in this respect that the contract of sale contained noprovision relating to the building of a new ripening plant. Moreover, the cost ofbuilding the Fruchthandelsgesellschaft facility substantially exceeded the amount ofthe investment which the purchaser had undertaken to make.

67.

    The applicant was therefore able, when it took its decision to build a new ripeningplant, to foresee the consequences that this would have within the context of thecommon organisation of the market in bananas established by Regulation No404/93. Consequently, the Commission, which, moreover, has a broad discretion inassessing the need for transitional measures, was justified in rejecting theapplicant's request of 18 December 1996 for the grant of additional licences.

68.

    That conclusion cannot be invalidated by the other arguments put forward by theapplicant in support of its action.

69.

    First of all, as regards the argument as to the applicant's need to have banana-ripening facilities, it should first be observed that this has not been proved. Awholesaler with a full range of fruit and vegetables is not, as the Commission hasstated, a trader in a special legal situation as regards the market. Furthermore, theapplicant does not dispute that a ripening plant can carry on its activities within theframework of the common organisation of the market in bananas, even without animport licence, by ripening bananas imported by other traders.

70.

    Moreover, even if a ripening plant was indispensable to the applicant, that did notrelieve it of the need, before starting to build it, to assess its profitability taking intoaccount the conditions laid down by the common organisation of the market inbananas.

71.

    Secondly, as regards the fact that the quantities of bananas ripened in the formerripening plant were attributed to the applicant for the purposes of calculating itsimport rights, it is appropriate to accept the explanation given by the Commission,inter alia at the hearing, to the effect that this was a transfer of proprietory rightsconfined to the ripening business during the years 1991, 1992 and 1993. That in noway implies that the applicant was justified in inferring from that transfer that therewas continuity in the ripening business from the privatisation ofGroßhandelsgesellschaft to the opening of its new ripening plant.

72.

    Thirdly, as for the alleged breach of the principle of equal treatment by virtue ofthe particularly difficult situation of privatised undertakings from the former GDR,it need only be observed that those difficulties are not due to the establishment ofthe common organisation of the market (see the case-law cited in paragraph 61above). They are therefore difficulties which do not fall within the scope of Article30 of Regulation No 404/93.

73.

    Furthermore, the Court of Justice held in its judgment in Germany v Council, citedabove (paragraphs 73 and 74), that, while it is true that not all undertakings areaffected in the same way by Regulation No 404/93, the difference in treatmentappears to be inherent in the objective of integrating previously compartmentalisedmarkets, bearing in mind the different situations of the various categories ofeconomic operators before the common organisation of the market.

74.

    Fourthly, with regard to the arguments concerning infringement of property rightsand of the right freely to pursue a trade or business, it should be pointed out thatthe Court of Justice has held that no economic operator can claim a right toproperty in a market share which he held before the adoption of the commonorganisation of the market in bananas. Moreover, restrictions on the right to importthird-country bananas resulting from the opening of the tariff quota and themachinery for its subdivision are inherent in the objectives of general Communityinterest pursued by the establishment of the common organisation of the marketin bananas and therefore do not improperly impair the freedom of traditionaltraders in third-country bananas to pursue their trade or business (see thejudgments of the Court of Justice in Germany v Council, cited above, paragraphs79, 82 and 87, and in Case C-122/95 Germany v Council [1998] ECR I-973,paragraph 77).

75.

    The applicant is not therefore justified in claiming that its right to property hasbeen infringed. Similarly, the applicant, which is not, moreover, as a ripening plant,

directly subject to legal restrictions under the common organisation of the market,cannot plead infringement of the right freely to pursue a trade or business.

76.

    Finally, the applicant is not justified in claiming that the rejection of its request bythe contested decision constitutes a misuse of powers. It need only be recalled inthis regard that, in accordance with the case-law, a decision amounts to a misuseof powers only if it appears, on the basis of objective, relevant and consistentfactors, to have been taken to achieve an end other than that stated (see thejudgment of the Court of First Instance in Case T-143/89 Ferriere Nord vCommission [1995] ECR II-917, paragraph 68, and the judgment of the Court ofJustice in Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph69). The applicant has provided no evidence to this effect.

77.

    It follows from the foregoing that the Commission correctly applied Article 30 ofRegulation 404/93 and that, in taking the contested decision, it did not pursue anobjective other than that laid down in that article.

78.

    Accordingly, without there being any need to order the measures of inquiryproposed by the applicant (see paragraphs 35 and 36 above), the application mustbe dismissed in its entirety.

Costs

79.

    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the applicant has been unsuccessful, and the Commission hasapplied for costs, the applicant must be ordered to pay the latter's costs. Inaccordance with Article 87(4) of the Rules of Procedure, the Kingdom of Spain andthe French Republic, interveners in the proceedings, are to bear their own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby:

1.    Dismisses the application;

2.    Orders the applicant to bear its own costs as well as the costs of the    Commission;

3.    Orders the Kingdom of Spain and the French Republic to bear their own    costs.

Cooke                García-Valdecasas            Lindh

Delivered in open court in Luxembourg on 28 September 1999.

H. Jung

J.D. Cooke

Registrar

President

1: Language of the case: German.