Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

My opinion today is concerned with problems connected with the special import arrangements for frozen beef intended for the processing industry as they have been put into practice since the beginning of 1977. I do not now need to give particulars of these arrangements which are based on the common organization of the market in beef and veal (Regulation (EEC) No 805/68 of the Council of 29 June 1968: Official Journal, English Special Edition 1968 (I), p. 187) and the rules whereof have been laid down in a series of regulations. They were considered in detail in the judgment of 6 March 1979 in Case 92/78 (Simmenthal S.p.A. v Commission of the European Communities [1979] ECR 777), and I would refer the Court to the opinion and judgment in that case.

In the present case, which has also been brought by Simmenthal, the immediate matter at issue has been a Commission decision relating to the first quarter of 1978 fixing minimum selling prices for the sale of frozen beef by the intervention agencies and fixing quantities of frozen beef which could be imported in the first quarter of 1978 on special terms. The substantive issue, however, is the legal basis of that decision, namely the way in which the special import arrangements were devised. The Court has acknowledged that the criticism levelled against those arrangements is to a large extent justified. Thus it held in its judgment of 6 March 1979 in Case 92/78 that it is unjustifiable to allow undertakings which are not part of the processing industry to have access to the special import arrangements and that the absence of any condition that meat bought under the linking system is to be used for a specific purpose is also objectionable. Although there is no objection to the introduction of the system of invitations to tender for the sale of intervention meat, that system has been disrupted by allowing too many prospective purchasers to participate, which leads to minimum prices being set at a level considerably higher than that at which meat is normally sold from intervention stocks. In addition, the placing of an upper limit on the quantities of intervention meat which may be bought by one successful tenderer has led to excessive fragmentation of the import quota and has placed large processing undertakings at a disadvantage, and this would have been avoided if the upper limit had been fixed at a higher level. For those reasons the Court declared the Commission decision which had been challenged void in so far as it affected the applicant.

In accordance with the direction by the Court at the end of its judgment the Commission reconsidered the situation of the applicant. Because the Court also stated at the end of its judgment that care must be taken that the linking system does not have the effect of ensuring that the processing industry buys meat from intervention stocks at a price lower than the price which at the relevant time is usually charged for the sale of meat from intervention stocks, and having regard to the fact that the applicant's tender was for 1091 units of account per tonne whereas the usual selling price was 1290 units of account per tonne the Commission came to the conclusion after reconsideration that the applicant's tender should still be rejected. The applicant claims that it only heard of this decision, which was adopted on 19 April 1979, during the present proceedings. It. was in any case not notified to the applicant by the Italian intervention agency until September 1979.

The Commission also accepted the consequences of the criticism which the said judgment made of the legal basis of the linking system. By means of Commission Regulation No 535/79 of21 March 1979 (Official Journal L 71 of 22 March 1979, p. 15) it suspended the application of the linking system for the time being and modified the special import arrangements by means of Commission Regulations (EEC) Nos 1136/79, 1137/79 and 1138/79, all of 8 June 1979, (Official Journal L 141 of 9 June 1979, pages 10, 13 and 15) which entered into force on 1 July 1979.

In addition, during the proceedings in Case 92/78 — it is here that I come to the present case — an invitation to tender was published for the fourth quarter of 1978 based on the rules which had not at the time been amended. For that invitation the general notice of periodic invitations to tender for the sale of frozen beef held by the intervention agencies (Official Journal C 11 of 13 January 1978, p. 16), which had played a part in Case 92/78, was applicable and the Notice of invitation to tender No It p 4 — Regulation (EEC) No 2900/77 — for the sale of certain frozen bone-in beef held in stock by the Italian intervention agency (Official Journal of 12 September 1978, C 225, p. 43) had to be observed. The applicant participated in that invitation to tender and submitted a tender, this time for 950 units of account per tonne. It was again unsuccessful, however, because by Commission Decision No 78/940/EEC of 27 October 1978 (Official Journal L 326 of 21 November 1978, p. 14) the minimum selling price for Italy was fixed at a considerably higher level (1539 units of account per tonne or more). The applicant was informed of this by a letter from AIMA, the Italian intervention agency.

Thereupon it again sought redress of the Court, on 3 November 1978, on the same grounds as in Case 92/78. It claims that the Court should:

The Commission considers that that application is inadmissible because there is no interest requiring legal protection and for this reason contends that the Court should dismiss it. In support of its view it refers to the abovementioned judgment given in Case 92/78, in connexion with a similar decision adopted for the first quarter of 1978. In that judgment an interest in bringing the application was acknowledged from two viewpoints: on the one hand, because after the annulment of the contested decision it was a matter of importance to the applicant to be restored sufficiently by the Commission to its original position(paragraphs 31 to 33 of the decision) and, on the other hand, because, if the system of invitations to tender were found to be incompatible with certain requirements, the Commission should be induced to modify the system for the future in an appropriate manner. In the instant case, however, it is contended that neither viewpoint is any longer relevant. The linking system has in the meantime been modified so that there is no interest in causing the Court to deliver a judgment once again on the earlier system which could only be the same as that given in Case 92/78. On the other hand, there is no point in the applicant's obtaining a declaration that the decision adopted by the Commission for the last quarter of 1978 is void, because it is already an established fact that a reconsideration of the applicant's tender can only lead to its rejection. This is said to follow, on the one hand, from the finding at the end of the judgment in Case 92/78 that the applicant's tender must be rejected if it is below price level at which meat from intervention stocks is usually sold at the relevant time, and, on the other hand, because the usual selling price at that time on the basis of Regulation No 2836/77 amounted to 1291 units of account per tonne, whilst the applicant's tender was for 950 units of account per tonne.

In my view the following opinion on this dispute is appropriate.

1. If I may say so immediately, I do not consider that the Commission's view on the admissibility of the application is tenable.

2. If therefore the application is regarded as being admissible the subsequent consideration of its substance does not present the slightest difficulty. As I have already mentioned at the beginning of this opinion, the legal basis of the disputed Commission decision in the present case fixing the minimum selling prices for frozen beef put up for sale by the intervention agencies in accordance with Regulation (EEC) No 2900/77 and specifying the quantities of frozen beef for processing which may be imported under special terms in the fourth quarter of 1978 is the same as that of the decision contested in Case 92/78. I have therefore no other choice than to confirm, as I did in Case 92/78, that that legal basis, which has been challenged with the same arguments, is defective and accordingly — for the details I would refer to the judgment in Case 92/78 — it is also certain that the Commission's decision of 27 October 1978, which was founded on that legal basis, must likewise be declared void, though only in so far as it affects the applicant, so that its other legal effects remain in force.

3. I still have to consider the question mentioned above which is very relevant to the decision as to costs, namely whether there were not after the judgment of 6 March 1979 in Case 92/78 had been delivered compelling reasons for the applicant to discontinue the present action — it had reached the stage of the written procedure before the filing of the reply on 30 July 1979 — which might give grounds for the inference that the applicant has caused the Commission to incur costs unreasonably or vexatiously (Article 69 (3) of the Rules of Procedure) and for that reason is to be ordered to bear those costs despite the success of its application.

4. In view of the foregoing I can only submit that the application lodged by Simmenthal be declared to be admissible and well-founded. The contested decision must therefore be declared void, but without such declaration being linked to an obligation on the part of the Commission to adopt another decision accepting the applicant's tender. The decision as to costs should accordingly be based on Article 69 (2) of the Rules of Procedure.

1 Translated from the German.