Court of Justice of the European Communities (including Court of First Instance Decisions)

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1. Procedure ° Discontinuance by the applicant ° Removal from the Register
(Rules of Procedure of the Court of Justice, Art. 78)
2. Procedure ° Costs ° Discontinuance not justified by the conduct of the other party
(Rules of Procedure of the Court of Justice, Art. 69(5))

In Case C-120/94,
Commission of the European Communities, represented by Christiaan Timmermans, Assistant Director General of the Legal Service, and Sean van Raepenbusch, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
applicant,
v
Hellenic Republic, represented by Krateros Iaoannou, Vassileios Skouris, Stelios Perrakis, university professors, and Spyros Zissimopoulos, Legal Adviser at the Greek Permanent Representation to the European Communities, acting as Agents, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix,
defendant,
APPLICATION for a declaration that the Hellenic Republic has misused the powers provided for in Article 224 of the EC Treaty in order to justify the unilateral measures adopted on 16 February 1994 prohibiting trade, in particular via the Port of Thessalonika, of products originating in, coming from or destined for the former Yugoslav Republic of Macedonia and imports into Greece of products originating in or coming from that Republic, and that by so doing it has failed to fulfil its obligations under Article 113 of the EC Treaty and under the common export rules laid down in Council Regulation (EEC) No 2603/69 of 20 December 1969 (OJ, English Special Edition 1969 (II), p. 590), the common import rules laid down in Council Regulation (EEC) No 288/82 of 5 February 1982 (OJ 1982 L 35, p. 1), the arrangements applicable to imports into the Community of products originating in the Republic of Bosnia-Herzegovina, the Republic of Croatia, the Republic of Slovenia and the former Yugoslav Republic of Macedonia, laid down in Council Regulation (EC) No 3698/93 of 22 December 1993 (OJ 1993 L 344, p. 1) and the Community transit rules laid down in Council Regulation (EEC) No 2726/90 of 17 September 1990 (OJ 1990 L 262, p. 1),
THE PRESIDENT OF THE COURT
makes the following
Order

1 By application lodged at the Court Registry on 22 April 1994, the Commission of the European Communities brought an action under the second paragraph of Article 225 of the EC Treaty for a declaration that the Hellenic Republic has misued the powers provided for in Article 224 of the EC Treaty in order to justify the unilateral measures adopted on 16 February 1994 prohibiting trade, in particular via the Port of Thessalonika, of products originating in, coming from or destined for the former Yugoslav Republic of Macedonia and imports into Greece of products originating in or coming from that Republic, and that by so doing it has failed to fulfil its obligations under Article 113 of the EC Treaty and under the common export rules laid down in Council Regulation (EEC) No 2603/69 of 20 December 1969 (OJ, English Special Edition 1969 (II), p. 590), the common import rules laid down in Council Regulation (EEC) No 288/82 of 5 February 1982 (OJ 1982 L 35, p. 1), the arrangements applicable to imports into the Community of products originating in the Republic of Bosnia-Herzegovina, the Republic of Croatia, the Republic of Slovenia and the former Yugoslav Republic of Macedonia, laid down in Council Regulation (EC) No 3698/93 of 22 December 1993 (OJ 1993 L 344, p. 1) and the Community transit rules laid down in Council Regulation (EEC) No 2726/90 of 17 September 1990 (OJ 1990 L 262, p. 1).
2 By order of 29 June 1994 in Case C-120/94 R Commission v Greece [1994] I-3040, the Court dismissed the application for the adoption of interim measures lodged by the Commission and seeking an order that the Hellenic Republic suspend, pending judgment in the main action, the measures adopted on 16 February 1994 with regard to the former Yugoslav Republic of Macedonia.
3 The oral observations of the parties were heard in camera on 1 February 1995.
4 The Advocate General delivered his Opinion on 6 April 1995.
5 By letter of 23 October 1995 the Commission informed the Court that it considered that it no longer had an interest in pursuing the proceedings in view of the fact that a temporary agreement had been made between the Hellenic Republic and the former Yugoslav Republic of Macedonia on certain matters, as a result of which the former had lifted the trade restrictions imposed on 16 February 1994. The Commission decided, therefore, in accordance with Article 78 of the Rules of Procedure of the Court of Justice, to discontinue the proceedings and ask that each party be ordered to bear its own costs.
6 By letter of 22 November 1995 the Greek Government asked the Court to rule on the substance. It points out, first, that the need to have confirmed the existence or otherwise of a breach of the Community rules in an action for failure to fulfil obligations under Article 169 of the EC Treaty is a sufficient basis for its interest in having the procedure in the action pursued to its conclusion, even if the alleged breach appears to have been terminated. It claims, next, that the main purpose of the action concerns a matter of fundamental importance to the Community legal order and that the Hellenic Republic has a legitimate interest in obtaining a ruling in view of the fact that it may be liable vis-ŕ-vis persons who seek to rely on injury resulting from the alleged breach of Article 224 of the Treaty. Lastly, the Greek Government observes that it follows from the general principles regarding the rights of the parties to be heard and equal treatment that where the applicant discontinues the action after the closure of the oral procedure the defendant is entitled to raise objections and to explain why he considers it necessary to obtain a ruling on the substance.
7 As regards costs, the Greek Government asks that the Commission be ordered to pay them. It submits that unless it has omitted to ask for costs or there has been an agreement between the parties on the sharing of costs, Article 69(2) and (5), first sentence, of the Rules of Procedure indicate that the party who discontinues shall be treated in the same way as an unsuccessful party. It goes on to point out that it neither provoked the action brought by the Commission nor, by its conduct, deprived the proceedings of their purpose.
8 In observations lodged on 15 December 1995 the Commission argues that it decided to discontinue the action as a result of its assessment, in the exercise of its duties as guardian of the Treaty, of the usefulness of pursuing the action. The Commission was not defending its own interests in having recourse to Article 169 or Article 225 of the Treaty. Moreover, Article 78 of the Rules of Procedure does not require the consent of the defendant before the Court may accept an application to discontinue the proceedings and does not restrict the applicant' s right to discontinue the proceedings before the Court at any stage. As regards legal protection for individuals, the Commission observes that that is to be obtained primarily from the national courts and that the procedure for obtaining a preliminary ruling under Article 177 of the EC Treaty enables the latter to obtain any clarification of the Community rules they require in order to determine the lawfulness of a national measure under Community law. As for costs, the Commission states that it would have no objection if a distinction were made in that regard between the main proceedings and the application for interim measures.
9 In its observations lodged on 12 January 1996 the Greek Government observes that the general principle of audi et alteram partem would be deprived of effect if the defendant was not entitled to object to the applicant' s discontinuing the proceedings or could not reasonably expect that his observations would be seriously considered. It goes on to state that in this case only Article 77 of the Rules of Procedure applies, in particular because the procedure on the substance has been completed. Finally, it emphasizes the fact that the purpose of the procedure for breach of the Treaty is not only to ensure that the breaches are terminated but also to confirm the breach, or absence of a breach, of Community law.
Discontinuance
10 Article 77 of the Rules of Procedure provides that if, before the Court has given its decision, the parties reach a settlement of their dispute and intimate to the Court the abandonment of their claims, the President is to order the case to be removed from the register. Article 78 of the Rules provides that if the applicant informs the Court in writing that he wishes to discontinue the proceedings, the President is to order the case to be removed from the register.
11 It is common ground that the Commission' s decision to discontinue the proceedings was the result, not of an agreement between itself and the Hellenic Republic, but of the fact that the Commission, the applicant, wishes to abandon the action, considering that there is no longer any interest in pursuing the procedure in view of developments which occurred after the closure of the oral procedure.
12 According to Article 78 of the Rules of Procedure it is sufficient for the applicant to inform the Court in writing that he wishes to discontinue the proceedings for the President to order that the case be removed from the register.
13 The Commission' s discontinuance of the action therefore satisfies the conditions laid down in Article 78 of the Rules of Procedure. Consequently, the case should be removed from the register and an order made as to costs.

Costs
14 Article 78 of the Rules of Procedure provides that a decision as to costs is to be made in accordance with Article 69(5) of the Rules, which provides, in turn, that a party who discontinues proceedings shall be ordered to pay the costs if they have been applied for in the other party' s pleadings. However, the second sentence of that paragraph provides that upon application by the party who discontinues, the costs shall be borne by the other party if this appears justified by the conduct of that party.
15 In this instance the Commission asks that each party be ordered to pay its own costs, on the basis of Article 69(5), second sentence. The Commission merely referred in that regard to the fact that the Hellenic Republic had abolished the contested measures.
16 That circumstance is not sufficient to justify the conclusion that the conduct of the Hellenic Republic justifies an order that it bear the costs. In the circumstances of this case it cannot be concluded that the Commission' s action, and subsequent discontinuance thereof, were the result of the conduct of the Hellenic Republic without presuming that the Commission' s action was well founded. As a result of the discontinuance of the action, however, it is no longer possible to consider the substance of the Commission' s action.
17 Consequently, the Commission should be ordered to pay the costs, including those entailed by the application for interim measures.

On those grounds,
THE PRESIDENT OF THE COURT
hereby orders:
1. Case C-120/94 shall be removed from the Register.
2. The Commission is ordered to pay the costs, including those entailed by the application for interim measures.
Luxembourg, 19 March 1996.