In Case C-307/93 R,
Ireland, represented by Michael A. Buckley, Chief State Solicitor, acting as Agent, assisted by James O' Reilly, Senior Counsel, and Richard Law Nesbitt, Barrister-at-law, of the Irish Bar, with an address for service in Luxembourg at the Irish Embassy, 28 Route d' Arlon,
applicant,
v
Commission of the European Communities, represented by Gérard Rozet, Legal Adviser, and Christopher Docksey, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, also of its Legal Service, Wagner Centre, Kirchberg,
defendant,
supported by
United Kingdom of Great Britain and Northern Ireland, represented by John D. Colahan, acting as Agent, assisted by Eleanor Sharpston, Barrister-at-law, with an address for service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,
intervener,
APPLICATION under Articles 185 and 186 of the EEC Treaty for the suspension of the operation of Commission Regulation (EEC) No 685/93 of 24 March 1993 amending Commission Regulation (EEC) No 859/89 laying down detailed rules for the application of general and special intervention measures in the beef and veal sector (OJ 1993 L 73, p. 9),
THE PRESIDENT OF THE COURT
makes the following
Order
1 By an application lodged at the Court Registry on 4 June 1993, Ireland brought an action under the first paragraph of Article 173 of the EEC Treaty seeking the annulment of Commission Regulation (EEC) No 685/93 of 24 March 1993 amending Commission Regulation (EEC) No 859/89 laying down detailed rules for the application of general and special intervention measures in the beef and veal sector (OJ 1993 L 73, p. 9).
2 By separate document lodged at the Court Registry on 13 June 1993, Ireland has also asked the Court, under Articles 185 and 186 of the Treaty and Article 83 of the Rules of Procedure, for an order suspending the operation of the contested regulation until it has given judgment in the main proceedings.
3 By order of 5 July 1993, the United Kingdom was given leave to intervene in the proceedings for interim measures in support of the forms of order sought by the Commission.
4 The Commission submitted written observations on the application for interim measures on 30 June 1993 and the oral explanations of the parties, including the intervener, were heard on 5 July 1993.
5 Before considering the justification of the application for interim measures, it is appropriate to call to mind the broad lines of the legislation governing the common organization of the markets in beef and veal.
6 The common organization of the markets in beef and veal was established by Council Regulation (EEC) No 805/68 of 27 June 1968 (OJ, English Special Edition 1968(I), p. 187), as amended on several occasions, which, among the price measures laid down, provides for a range of measures relating to premiums and intervention.
7 The measures relating to premiums were substantially modified as part of the reform of the Common Agricultural Policy by Regulation (EEC) No 2066/92 of 30 June 1992 (OJ 1992 L 215, p. 49) in order to take account of the new developments in that policy and in particular of the reduction in the intervention price for beef that was necessary in order to redress the situation of agriculture in general.
8 The intervention measures consist either of private storage aid or of buying-in by intervention agencies. Under Article 5(2) of Regulation No 805/68, cited above, such intervention measures may be taken "for adult bovine animals as well as for fresh or chilled meat of such animals presented in the form of carcases, half-carcases, compensated quarters, fore quarters or hind quarters, classified in accordance with the Community classification scale provided for in Regulation (EEC) No 1208/81".
9 Public intervention consists of three types of measures:
° so-called normal or traditional intervention measures, effected through tendering procedures, up to an annual ceiling for the whole of the Community which is to decrease from 750 000 tonnes in 1993 to 350 000 tonnes from 1997 onwards; the Commission, acting in accordance with the so-called management committee procedure, has a discretion to decide on the opening of such intervention buying-in where the required conditions are fulfilled;
° so-called safety-net intervention measures, which are not counted against the abovementioned buying-in ceiling and in respect of which the Commission has no discretion as regards the decision to open buying-in;
° special intervention measures for lightweight carcases (between 150 and 200 kg) of male bovine animals, which apply only for a period of three years (1 January 1993 to 31 December 1995) and subject to certain conditions.
10 The arrangements for implementing public intervention in a Member State are determined by Council Regulation No 805/68, Article 6(7) of which sets out the various powers delegated to the Commission in this area.
11 The detailed rules for the application of the intervention measures are laid down in Commission Regulation (EEC) No 859/89 of 29 March 1989 (OJ 1989 L 91, p. 5), which describes the tendering procedure extensively and defines, in Article 4, the various conditions which products must satisfy for the purposes of buying-in. It is precisely those conditions which the contested measure, adopted by the so-called management committee procedure pursuant to Article 6(7) of Regulation No 805/68, amends by introducing a gradual limitation on the weight of carcases that may be bought in under the normal intervention procedure, such that products may be bought in only if they come from carcases whose weight does not exceed the following levels:
° 380 kg as from the first tendering procedure of July 1993;
° 360 kg as from the first tendering procedure of January 1994;
° 340 kg as from the first tendering procedure of July 1994.
12 By adopting the contested regulation, the Commission sought to convey a message to producers with a view to their committing themselves not to produce heavy carcases for buying-in. According to the preamble to the regulation, there has been a trend towards increasingly heavy beef and veal carcases, made possible in particular by genetic progress, which encourages production intended for intervention because frequently there is no market demand for such carcases. Before the Court, the Commission explained that such a message had to have an effect as from 1993, since the outlook on the market was relatively favourable for 1993 and 1994, whilst a return to a higher phase in the production cycle was expected to be recorded in 1995.
13 According to Article 185 of the Treaty, actions brought before the Court do not have suspensory effect. However, under Articles 185 and 186 of the Treaty, the Court may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe the necessary interim measures.
14 According to Article 83(2) of the Rules of Procedure, a decision ordering the suspension of the operation of a measure or any interim measure is dependent upon the existence of circumstances giving rise to urgency and factual and legal grounds establishing a prima facie case for the interim measures applied for.
15 As regards the existence of factual and legal grounds establishing a prima facie case for the interim measure, the applicant maintains that Regulation No 685/93 is vitiated by illegality.
16 In that connection, the applicant puts forward a number of pleas alleging, in particular, the Commission' s lack of competence to adopt the contested regulation and breach of the principle of non-discrimination, of the principle of equality, of the principle of protection of legitimate expectations and of the principle of proportionality. It also relies upon abuse of powers and infringement of essential procedural requirements.
17 In that regard, suffice it to observe that the application raises complex legal issues warranting detailed consideration after discussion involving all the parties and that the application does not appear prima facie to be devoid of all justification. Consequently, it cannot be rejected on that ground.
18 As regards the requirement for urgency, it should be pointed out that the Court has consistently held that the urgency of an application for interim measures, as referred to in Article 83(2) of the Rules of Procedure, must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage being caused by the immediate application of the measure which is the subject of the main proceedings.
19 In that regard, the applicant refers to the serious and irreparable damage which producers of beef and veal in Ireland would sustain if the 380 kg weight limit on carcases eligible for intervention laid down by the contested regulation were to enter into force with effect from the first tendering procedure of July 1993. That limitation would debar 32% of Irish steers from intervention during the peak autumn slaughtering season between September and November 1993, causing a heavy fall in prices by which all producers would be affected.
20 The applicant refers to the extensive nature of cattle production in Ireland in order to show that producers would have no margin for manoeuvre in order to adapt their production in the short term to suit the new intervention conditions: cattle production based on grass produces steers which have a slow growth rate (two to three years to reach maturity) and means that they have to be slaughtered in the autumn before the land gets wet.
21 It states that no Irish producer could reasonably have anticipated the weight limitation when he bred or commenced to fatten steers.
22 The Commission, the defendant, maintains that Irish producers knew, since discussions started on the management committee in December 1992, that they would have to consider how to cope with the new limits. As a result, they have had sufficient time to plan to slaughter early enough to be eligible for intervention measures.
23 The Commission denies that there is a risk that the beef and veal market in Ireland will collapse in autumn 1993, on the ground of the current improvement in that market in the Community. It points out that the Irish domestic market consumes only 13% of output and that the surplus has almost invariably been exported, with Ireland having little recourse to intervention. It points in that connection to the absence of offers from Ireland over the last four tenders for intervention, that is to say since May 1993.
24 The Commission states that if, against every expectation and in spite of favourable forecasts for 1993 and 1994, the market in beef and veal were to collapse, it would deploy every appropriate measure at its disposal, including altering, or even abolishing, the limits at issue.
25 It must be observed that the applicant has not established with a sufficient degree of probability that there is a risk that the market in beef and veal in Ireland will collapse in autumn 1993 owing to the rigidity of the cattle production cycle in that country preventing producers from adapting to the new intervention conditions.
26 In the first place, the applicant has not shown that it was impossible for Irish producers to slaughter their cattle earlier in order to be eligible for intervention measures. Neither has the applicant cogently explained how earlier slaughter could detract from the quality of the meat to such an extent as to prevent it from being eligible for intervention.
27 Secondly, the applicant has not adduced evidence capable of satisfying the Court that it is impossible for the great majority of Irish producers to keep their cattle on the hoof during the winter pending better conditions on the market.
28 Furthermore, the applicant does not take account of the private storage aid provided for under the Community legislation, which enables producers forced to slaughter their cattle to await more favourable conditions for marketing the carcases.
29 Those opportunities for deferring the marketing of part of production should appear all the more attractive to producers if prices fall in autumn 1993, since the prospects for the market are rather good for 1994.
30 It should also be noted that Irish production of beef and veal consists mostly of very good quality meat intended for export. If that meat were to undergo major difficulties in finding a market, lower quality meat would be in an even more difficult situation, not only on the Irish market, but throughout the Community. The Commission, which continually surveys the market situation, would certainly not fail to act and, as it itself emphasizes, might propose modifying, or even repealing, the contested legislation; such a decision could be adopted and enter into force within the shortest of timescales, since it comes under the so-called management committee procedure.
31 It follows from the above that the applicant has not established the urgency of the measure applied for in order to avoid serious and irreparable damage.
32 Consequently, the application for interim measures must be dismissed.
On those grounds,
THE PRESIDENT OF THE COURT
hereby:
1. Dismisses the application for interim measures;
2. Reserves the costs.
Luxembourg, 16 July 1993.
