JUDGMENT OF 5. 3. 1980 — CASE 243/78 SIMMENTHAL v COMMISSION

In Case 243/78

THE COURT (Second Chamber) composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts

II — Written procedure

III — Conclusions of the parties

IV — Submissions and arguments of the parties during the written procedure

A — Admissibility

B — The substance

IV — Oral procedure

Decision

I —. Facts

1. Article 13 (1) of Regulation No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187) provides that a levy shall be charged on imports into the Community of frozen meat of domestic bovine animals falling within tariff subheading 02.01 A II (a) 2 of the Common Customs Tariff.

2. However, Article 14 (1) of the said regulation provided for frozen meat intended for processing (forequarters and boned or boneless or unboned meat) to qualify for special import terms consisting of the total or partial suspension of the levy. Article 14 (3) (a) provided for the total suspension of the levy in respect of meat intended for the manufacture of preserved food falling within subheading 16.02 B III (b) 1 of the Common Customs Tariff which does not contain characteristic components other than beef and jelly.

3. On 14 February 1977 the Council adopted Council Regulation No 425/77 amending Regulation No 805/68 (Official Journal L 61, p. 1).

4. The Commission adopted detailed rules for the application of Council Regulation No 425/77 in Commission Regulations Nos 585/77 and 597/77 of 18 March 1977, the first on the system of import and export licences for beef and veal (Official Journal 1977 L 75, p. 5); the second laying down detailed rules for the application of special import arrangements for certain types of frozen beef intended for processing (Official Journal 1977 L 76, p. 1); those regulations were themselves subsequently amended and completed by Commission Regulation No 1384/77 of 27 June 1977 (Official Journal L 157, p. 16) and Commission Regulation No 2901/77 of 22 December 1977 (Official Journal L 338, p. 9) [They were subsequently replaced by Commission Regulations (EEC) Nos 571/78 and 572/78 of 21 March 1978 (Official Journal 1978 L 78, p. 10 and p. 17)].

5. On 22 December 1977 the Commission also adopted Regulation No 2900/77 laying down detailed rules for the sale of beef held by the intervention agencies to enable the import with total suspension of the levy of frozen beef and veal intended for processing (Official Journal L 338, p. 6).

6. On the basis inter alia of Regulations No 216/69, No 2900/77 and No 2901/77 the Commission published on 13 January 1978 (Official Journal C 11, p. 16) a general notice of periodic invitations to tender for the sale of frozen beef held by the intervention agencies to enable the import with total suspension of the levy of frozen beef and veal intended for processing.

7. The Commission published at the same time as the general notice of invitations to tender several partial invitations to tender, including Notice of invitation to tender No It P 1 — Regulation (EEC) No 2900/77 — for the sale of certain frozen unboned (bone-in) beef held in stock by the Italian intervention agency (Official Journal C 11, p. 34).

8. On 20 January 1978 the joint stock company Simmenthal, whose registered office is at Aprilia, submitted to AIMA (Azienda di Stato per gli Interventi nel Mercato Agricolo: the Italian Intervention Agency for agricultural products) a tender for the purchase of 100 tonnes of frozen unboned beef at a price of LIT 1240000 per tonne.

9. On 15 February 1978 the Commission adopted Decision No 78/258/EEC 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 first quarter of 1978 (Official Journal L 69, p. 36).

10. On 23 February 1978 AIMA addressed to Simmenthal a decision of refusal of its tender of 20 January since it did not come within the terms of the invitation to tender.

11. By an application of 13 April 1978 Simmenthal requested the Court, pursuant to the second paragraph of Article 173 of the EEC Treaty, to declare Commission Decision No 78/258 to be void and, in accordance with Article 184, to declare the partial notice of invitation to tender No It P 1 and the general notice of periodic invitations to tender of 13 January 1978, Regulations No 585/77, No 2900/77 and No 2901/77 to be inapplicable.

12. On 22 September 1978 the Commission published partial invitation to tender No It P 4 — Regulation (EEC) No 2900/77 — for the sale of certain frozen unboned (bone-in) beef held in stock by the Italian intervention agency (Official Journal C 225 of 12 September 1978, p. 43).

13. On 6 October 1978 Simmenthal submitted to AIMA a tender for the purchase of 100 tonnes of frozen unboned (bone-in) beef at a price of 950 units of account per tonne.

14. On 27 October 1978 the Commission adopted Decision No 78/940/EEC 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 (Official Journal L 326, p. 14).

15. Article 1 (1) of that decision in conjunction with the annex thereto fixes the minimum selling prices for frozen beef stored by the intervention agencies which are to be adopted for invitation to tender No It P 4 in the following way:

16. On 30 October 1978 AIMA informed Simmenthal that its tender had not been accepted since the price tendered was less than the minimum price fixed by the competent Community bodies.

17. On 3 November 1978 Simmenthal requested the Court to declare Decision No 78/940/EEC to be void.

18. The proceedings instituted against Decision No 78/258/EEC by Simmenthal on 13 April 1978, in which the Government of the Italian Republic intervened in support of the conclusions of the applicant company, culminated in a judgment of the Court of Justice of 6 March 1979 in Case 92/78.

19. The Commission adopted on 19 April 1979 and sent to the Italian Government on 20 April 1979 a decision rejecting a tender submitted in answer to an invitation to tender for frozen beef put up for sale by the intervention agencies in accordance with Regulation No 2900/77 for the first quarter of 1978.

20. More generally, the Commission accepted the consequences of the judgment of the Court of 6 March 1979 by adopting on 8 June 1979 three regulations:

II —. Written procedure

1. Simmenthal lodged an application on 3 November 1978, pursuant to Articles 173, 174 and 184 of the EEC Treaty, for a declaration that Commission Decision No 78/940/EEC of 27 October 1978 is void and that Notice of invitation to tender No It P 4 of 22 September 1978, the General Notice of periodic invitations to tender of 13 January 1978, Commission Regulation No 571/78 of 21 March 1978 and Commission Regulation No 2900/77 of 22 December 1977 are inapplicable.

2. On the same date, 3 November 1978, Simmenthal, pursuant to Articles 185 and 186 of the EEC Treaty and Article 83 (1) of the Rules of Procedure, lodged an application for suspension of the effectiveness of Commission Decision No 78/940/EEC, limited as appropriate to the results of Notice of invitation to tender No It P 4 and for an order that the Commission should instruct the national authorities to suspend the issue of the import licences corresponding to the purchase agreements concluded by the successful tenderers with the intervention agencies and also for the suspension, until publication of the final judgment in Case 92/78, of the application of the special import arrangements for frozen meat intended for the processing industry for 1979.

3. The President of the Court by an order of 29 November 1978 refused the application and reserved the costs.

4. The written procedure in the principal action, after an extension of the time limit within which the defence was to be lodged, followed the normal course.

5. After hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry. However, it asked a question which it request the Commission to answer in writing and Simmenthal to answer at the hearing.

6. By an order of 7 November 1979 the Court, pursuant to Article 95 (1) and (2) of the Rules of Procedure decided to assign the case to the Second Chamber.

III —. Conclusions of the parties

1. The applicant claims that the Court should:

2. The Commission relies on the wisdom of the Court as to whether the application may be inadmissible, at least if, upon careful examination, it is found to be designed to obtain an interpretation of the judgment of the Court of 6 March 1979 in Case 92/78.

IV —. Submissions and arguments of the parties during the written procedure

A —. Admissibility

1. The Commission draws attention to the fact that the Court in its judgment of 6 March 1979 in Case 92/78 admitted that the applicant company had an interest in the annulment of the contested decision; such interest consists either in its being restored sufficiently by the Commission to its original position or in inducing the Commission to make suitable amendments in the future to the system of invitations to tender ....

2. As far as the applicant is concerned, it considers that its application is unquestionably admissible.

B —. The substance

1. The applicant in its application originating the proceedings has put forward several submissions very similar to those used in support of its application in Case 92/78, which culminated in the Court's judgment of 6 March 1979, for the purpose of challenging Commission Decision No 78/940/EEC itself and also the measures of general application upon which it is based, especially Regulations Nos 2900/77, 571/78 and 572/78. In the light of that judgment the applicant in its reply merely states that the parties are not of the same mind as to the meaning of the expression the price for reducing intervention agency stocks usually charged and that in this connexion the following considerations should be borne in mind:

2. The Commission takes the view that price usually charged should be understood as meaning the normal selling price of stocks paid by traders who, at any time, and even irrespective of other transactions, wish to buy meat held by the intervention agencies. That price, the level of which varies according to the different qualities of meat, is fixed by the Commission.

IV —. Oral procedure

1. By an application lodged on 3 November 1978 pursuant to the second paragraph of Article 173 of the EEC Treaty the applicant requests the Court to declare Commission Decision No 78/940/EEC of 27 October 1978 fixing the minimum selling price 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 (Official Journal L 326, p. 14) to be void.

2. By an application lodged on the same date pursuant to Articles 185 and 186 of the EEC Treaty and Articles 83 (1) of the Rules of Procedure the applicant requested the Court to suspend the effects of the decision forming the subject-matter of the principal application and also to suspend the application of the special arrangements for the importation of frozen meat intended for the processing industry for 1979. That application was refused by an Order of the President of the Court in Case 243/78 R of 29 November 1978 ([1978] ECR 2391).

3. It should be borne in mind that the Court, before which the same applicant instituted proceedings against Commission Decision No 78/258 of 15 February 1978 adopted for the first quarter of 1978 in connexion with the special selling arrangements as provided for in Article 14 of Regulation No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187), as amended by Council Regulation No 425/77 of 14 February 1977 (Official Journal L 61, p. 1), in its judgment of 6 March 1979 in Case 92/78 ([1979] ECR 777) found in favour of the applicant by declaring the contested decision to be void.

4. In paragraphs 108 to 110 of its decision in that judgment the Court, having decided to declare the contested decision to be void, nevertheless continued as follows:

5. The Commission, in pursuance of that judgment, adopted on 19 April 1979 a decision worded as follows:

6. Simmenthal has not lodged an application challenging that Commission decision but has conducted proceedings within the framework of the pending application challenging the decision relating to the invitation to tender for the fourth quarter of 1978.

7. The Commission in its defence lodged on 18 June 1979 states that Simmenthal's prosecution of its action is unjustified and serves no useful purpose since the amount offered in Simmenthal's tender in response to the invitation to tender for the fourth quarter, being 950 units of account per tonne, must a fortiori lead to the rejection of that tender. Since the present application is, moreover, only a repetition of the application challenging the invitation to tender for the first quarter, Simmenthal cannot expect to derive any further advantage in the event of its being successful. The Court therefore has sufficient grounds on which to declare this application inadmissible.

8. The applicant in its reply submits that the admissibility of an action must be determined in the light of the facts and the legal situation at the moment when that action was brought and that it is impossible to establish a case of contingent admissibility during the proceedings. As far as the substance of the problem is concerned, the applicant explains that the expression price for reducing intervention agency stocks usually charged at the relevant time leaves open the question of the price level to which the Court intended to refer. In the decision which it adopted in consequence of the judgment of 6 March 1979 the Commission took as the price usually charged for reducing intervention agency stocks the unrestricted price for reducing such stocks applied in the case of sales of frozen meat in the absence of any condition that the meat purchased should be used for a specific purpose. But in this case, where it is intended that an advantage be secured for the processing industry, the prices charged for reducing stocks of meat intended for specific purposes should be taken as the point of reference. In this connexion the applicant makes special reference to the price of 964 units of account per tonne charged for reducing stocks for social purposes and the price of 950 units of account per tonne, which corresponds precisely to the level of the tender which it had submitted, charged for reducing stocks for industrial purposes.

9. The Court considers that reasoning to be unconvincing. Taking into account the prior situation outlined above it is evident that the applicant, as from the date of the judgment of 6 March 1979, and at the latest as from the date of the decision adopted by the Commission in implementation of that judgment, no longer had an interest in prosecuting the proceedings which it had instituted against the Commission's decision relating to the invitation to tender for the fourth quarter of 1978. In fact from that time onwards the applicant could foresee with certainty that its tender, like that relating to the first quarter, would be rejected in view of the principles laid down by the abovementioned judgment of the Court.

10. The issue raised by the applicant concerning the meaning of the expression price for reducing intervention agency stocks usually charged at the relevant time is specious, since in the context of the judgment of 6 March 1979 it is absolutely clear that that expression refers to the price which buyers are usually charged in the absence of any particular intended purpose for the meat concerned. The prices mentioned by the applicant refer to wholly exceptional transactions in that they relate to sales of meat for social purposes or of goods which, as they were coming to the end of the period during which their freshness could be guaranteed, were disposed of at a particularly favourable price. Prices charges when exceptional transactions of this kind are concluded cannot be taken as the usual prices for reducing stocks.

11. It is thus apparent that the prosecution by the applicant of its action has been an abuse of process from the date when the judgment of 6 March 1979 was delivered and, at the latest, as from the date on which the decision adopted by the Commission in implementation of that judgment took effect. The application must therefore be dismissed and the applicant be ordered to pay the whole of the costs including the costs of the application for the adoption of interim measures.

On those grounds, THE COURT (Second Chamber) hereby :

1 Dismisses the application;

2 Orders the applicant to pay the costs including the costs of the application for the adoption of interim measures.