ORDER OF THE PRESIDENT OF THE GENERAL COURT
4 February 2010 (*)
(Interim measures – Customs union – Third-party proceedings – Judgment of the General Court – Application for stay of execution – Failure to have regard to formal requirements – Inadmissibility)
In Case T‑385/05 TO R,
Portuguese Republic, represented by L. Inez Fernandes, A.C. Santos, J. Gomes and P. Rocha, acting as Agents,
third party,
the other parties to the proceedings being
Transnáutica – Transportes e Navegação, SA, established in Matosinhos (Portugal), represented by C. Fernández Vicién and D. Ortigão Ramos, lawyers,
applicant in the main proceedings,
and
European Commission, represented by R. Lyal and L. Bouyon, acting as Agents,
defendant in the main proceedings,
APPLICATION for stay of execution, in third-party proceedings, of the judgment of 23 September 2009 in Case T‑385/05 Transnáutica v Commission, not published in the ECR,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Facts, procedure and forms of order sought by the parties
1 By application received at the Registry of the Court on 4 December 2009, the Portuguese Republic instituted third-party proceedings, in accordance with Article 42 of the Statute of the Court of Justice of the European Union and Article 123 of the Rules of Procedure of the General Court, to contest the judgment of 23 September 2009 in Case T‑385/05 Transnáutica v Commission, not published in the ECR (‘the contested judgment’). On the same day, the Portuguese Republic also lodged an appeal before the Court of Justice seeking to have the contested judgment set aside.
2 In the judgment under appeal, the Court annulled Decision REM 05/2004 of the Commission of the European Communities of 6 July 2005 refusing the repayment and remission of certain customs duties which the applicant in that case, Transnáutica – Transportes e Navegação, SA (‘Transnáutica’), a Portuguese freight transportation company, had to pay in respect of operations carried out under the external Community transit procedure. In paragraph 31 of the contested judgment, the Court found that it was clear from Decision REM 05/2004 that the Commission and the Portuguese authorities had agreed to exclude the existence of obvious negligence or deception on the part of Transnáutica in the present case. However, the Court held that the Commission had made a manifest error of assessment in finding that Transnáutica was not in a special situation, for the purposes of Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the Customs Code’) and Article 905 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the Customs Code (OJ 1993 L 253, p. 1), even though there had been a lack of diligence on the part of the Portuguese customs authorities in carrying out their task of monitoring the customs operations at issue.
3 By a separate document lodged at the Court Registry on 17 December 2009, in accordance with Article 123(2) of the Rules of Procedure, the Portuguese Republic made the present application for interim measures, in which it claims in essence that the President of the Court should:
– stay the execution of the contested judgment;
– order Transnáutica to pay the costs.
4 In its written observations on the application for interim measures, lodged at the Court Registry on 20 January 2010, Transnáutica contends in essence that the President of the Court should:
– dismiss the application for interim measures as inadmissible or, in the alternative, as unfounded;
– order the Portuguese Republic to pay the costs.
5 In its written observations on the application for interim measures, lodged at the Court Registry on the same day, the Commission states that it has no objection to the grant of the stay of execution requested by the Portuguese Republic.
Law
6 Article 42 of the Statute of the Court of Justice, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 of that Statute, states that ‘Member States, institutions, bodies, offices and agencies of the Union and any other natural or legal persons may, in cases and under conditions to be determined by the Rules of Procedure, institute third-party proceedings to contest a judgment rendered without their being heard, where the judgment is prejudicial to their rights’.
7 Article 123(1)(b) and (c) of the Rules of Procedure provides that an application initiating third-party proceedings must state how the contested judgment is prejudicial to the rights of the third party and indicate the reasons for which the third party was unable to take part in the original case before the Court.
8 In addition, Article 123(2) of the Rules of Procedure states that the Court may, on application by the third party, order a stay of execution of the judgment and that, in that case, the provisions of Title 3, Chapter 1, are to apply, that is to say Articles 104 to 110 of the Rules of Procedure.
9 Since failure to comply with the Rules of Procedure of the Court may constitute an absolute bar to proceeding, it is for the judge hearing the application for interim measures to examine, of his own motion, whether the applicable provisions of those rules have been complied with (see the order of the President of the Court of 2 July 2009 in Case T‑246/09 R Insula v Commission, not published in the ECR, paragraph 6 and the case-law cited).
10 In the light of the documents in the case, the judge hearing the application for interim measures considers that he has all the material required in order to rule on the present application for interim measures and that it is not necessary first to hear oral argument from the parties. In the circumstances of the present case, it is appropriate first of all to examine the admissibility of the application.
11 In that regard, Article 104(2) of the Rules of Procedure provides that applications for interim measures must state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, a stay of execution and other interim measures may be ordered by the judge hearing the application for interim measures if it is established that such an order is justified, prima facie, in fact and in law and that they are urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, they must be made and produce their effects before a decision is reached in the main action (see Insula v Commission, paragraph 7 and the case-law cited).
12 In addition, under Article 104(3) of the Rules of Procedure, the application must inter alia be made by a separate document and in accordance with the requirements of Article 44 of those rules and, in particular, in accordance with the requirement laid down in Article 44(1)(c), which provides that any application must state the subject-matter of the proceedings and contain a summary of the pleas in law on which the application is based (Insula v Commission, paragraph 8).
13 It follows, on reading those provisions of the Rules of Procedure together, that an application for interim measures must be sufficient in itself to enable the defendant to prepare his observations and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out in a coherent and comprehensible fashion in the application for interim relief itself (orders of the President of the Court in Case T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 34; Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 52; Case T‑175/03 R Schmitt v EAR [2003] ECR‑SC I‑A‑175 and II‑883, paragraph 18; Case T‑85/05 R Dimos Ano Liosion and Others v Commission [2005] ECR II‑1721, paragraph 37; of 13 December 2006 in Case T‑288/06 R Huta Częstochowa v Commission, not published in the ECR, paragraph 12; and Insula v Commission, paragraph 9).
14 In addition, point 68 of the Court’s Practice Directions to Parties (OJ 2007 L 232, p. 7) expressly provides that ‘[t]he application must … be intelligible in itself, without necessitating reference to the application lodged in the main proceedings’.
15 Consequently, an application for interim measures which is connected with an application initiating third-party proceedings must indicate the essential elements of fact and law not only giving rise to the alleged urgency, but also establishing a prima facie case. That requires that the application for interim measures contain, at the very least, a summary of the reasons for which, first, the contested judgment is prejudicial to the rights of the third party and, second, that party was unable to take part in the original case.
16 In the present case, it should be noted, in that regard, that the application for interim measures sets out the following, under the heading ‘grounds for a stay’:
‘1. Following the delivery of the [contested] judgment … the … Commission was required, by virtue of the first paragraph of Article [266] TFEU, to take the measures necessary to comply with that judgment.
2. That would mean that the Commission should adopt a new decision in which it established that the conditions laid down in Article 239 of [the Customs Code] for the remission and repayment of customs duties [to] Transnáutica had been satisfied.
3. In fact, given that the Court … held that there existed a special situation within the meaning of Article 239, it would appear impossible for the Commission, having regard to paragraph 31 of the [contested] judgment, to find, in the new decision, obvious negligence on Transnáutica’s part for the purpose of the application of that article.
4. That being so, and following the new decision to be adopted by the … Commission (which must be done by 24 June 2010 at the latest), the Portuguese authorities would have to comply with the decision by virtue of Article 908(2) of … Regulation … No 2454/93 ...
5. In other words, the Portuguese authorities would be obliged to grant remission and to make repayment to Transnáutica of the duties, and of the other charges payable, for, with regard to the amounts still not paid, in respect of which recovery enforcement proceedings were brought which have now been stayed on the basis of Article 244 of the Customs Code, that decision would entail putting an end to the attachment now affecting certain property belonging to Transnáutica.
6. Accordingly, and considering that, in the decision to be taken, if the … Court were to uphold, as claimed, any one of the pleas raised in the exceptional application initiating third-party proceedings made by the Portuguese Republic, that would, in all likelihood, lead that court to vary [the contested judgment] finding that there was a special situation within the meaning of Article 239 of the Customs Code, wherefore it is necessary thus to maintain the effectiveness of the new [judgment].
7. In those circumstances, following the new decision to be taken by the Commission in accordance with the judgment, it would be impossible for the Portuguese authorities to initiate new recovery proceedings pursuant to Article 242 of the Customs Code, for they would in the meantime have become time-barred as provided for in Article 221 of the Customs Code.
8. Moreover, even if that were not so, it would still have to be accepted that when the new recovery proceedings were brought the property now attached in the tax enforcement proceedings before the national court might no longer be available for the purpose of a new attachment.
9. On that view, it must be concluded that the Portuguese budget (like the Community budget) would in such circumstances be affected, for if the … Court were to uphold, as the Portuguese Government claims it should, one or more of the pleas raised in the application initiating third-party proceedings, there could be no chance of recovering, even in part, the amount of the debt involved in these proceedings, which would entail the non-recovery of Community own resources (for of course the Portuguese State must also retain, by way of recovery costs, 10% of the amount recovered) and of the national taxes concerned.
10. For those reasons, the Portuguese Republic considers that the conditions for a stay of execution of the [contested] judgment … are satisfied.’
17 It must be noted that, as regards the condition of urgency, the Portuguese Republic merely states that the Portuguese budget and the budget of the European Union would be affected if the present application for interim measures were dismissed, without indicating the seriousness of the alleged financial loss. As regards the condition that there be a prima facie case, the application for interim measures is silent on the reasons for which the Portuguese Republic would have been prevented from taking part in the proceedings brought to an end by the contested judgment.
18 In the light of the above, the judge hearing the application for interim measures considers that the arguments set out by the Portuguese Republic in its application for interim measures do not make it possible to assess either the seriousness of the loss alleged in relation to urgency or whether its application initiating third-party proceedings is prima facie well founded.
19 It should be added that the lack of sufficient explanation, in the application for interim measures, of the grounds establishing a prima facie case cannot be compensated for by the wording of the application initiating third-party proceedings lodged at the Court Registry. Although specific points in the application for interim measures can be substantiated and supplemented by references to particular passages in the documents attached to it, those documents cannot make up for the lack of essential information in that application. It is not the task of the judge hearing the application for interim measures to take the place of the party concerned in searching for the information contained in the annexes or in the application in the main proceedings which might support the application for interim measures. In addition, imposing such an obligation on the judge hearing the application would render redundant the provision of the Rules of Procedure which states that an application for interim measures must be made by a separate document (see, to that effect, Insula v Commission, paragraphs 13 and 14 and the case-law cited).
20 Finally, although it may be accepted that Transnáutica and the Commission, as parties to the main proceedings, are able to understand the grounds for the application initiating third-party proceedings, it should be pointed out, none the less, that the application for interim measures must, in itself, enable not only those parties to prepare their observations effectively, but also the judge hearing the application for interim measures to rule on that application with knowledge of the facts (see paragraph 13 above). However, as has just been stated, the arguments in the application for interim measures do not enable the judge hearing the application for interim measures, with the rapidity required in this area, to rule on the condition that there be a prima facie case (see, to that effect, the order of the President of the Court of 19 February 2008 in Case T‑444/07 R CPEM v Commission, not published in the ECR, paragraph 31).
21 It follows from the above that the present application for interim measures must be declared inadmissible in so far as it does not satisfy the requirements of Article 104(2) of the Rules of Procedure and does not enable the judge hearing the application for interim measures to rule on the conditions relating to urgency and the existence of a prima facie case.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 4 February 2010.