Opinion of mr Advocate General Reischl

Mr President,

Members of the Court,

The proceedings on which I shall now give my opinion concern the special arrangements for the importation of frozen beef and veal already familiar to the Court from Case 92/78 (Simmenthal S.p.A. v. Commission, judgment of 6 March 1979 [1979] ECR 777). With regard to the legal background — at that time Regulation No 535/79 on the temporary suspension of the linking arrangements (Official Journal of 22 March 1979, No L 71, p. 15) and Regulations Nos 1136, 1137 and 1138/79 on the alteration of the arrangements (Official Journal of 9 June 1979, No L 141, pp. 10, 13 and 15) had not yet entered into force — I can thus refer to Case 92/78.

The applicant, who runs a meatprocessing factory, in which beef and veal as referred to in Article 14 of Regulation No 805/68 (Official Journal, English Special Edition 1968 (I), p. 187) is processed, participated in the Notice of invitation to tender No D P 5 — Regulation (EEC) No 2900/77 — for the sale of certain frozen bone-in beef held in stock by the German intervention agency, a notice of invitation to tender to which the 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 (Official Journal of 13 January 1978, No C 11, pp. 16 et seq.) clearly still applied. That participation comprised inter alia five tenders which were submitted on 9 January 1979 to the German intervention agency, the Bundesanstalt für landwirtschaftliche Marktordnung [The Federal Agency for the organization of the Agricultural Market]. Of those tenders one concerned the meat of bulls which was stored in Bremen, that is to say, in the Federal Republic of Germany, and four related to the meat of steers which was stored in Denmark. The tenders were notified by the intervention agency to the Commission as is provided for in Article 4 of Regulation No 2900/77. At this point an error was clearly committed which was only discovered at the stage of the defence in this case. According to the Bundesanstalt's telex message all the tenders of the applicant concerned meat stored in Germany. According to the abovementioned general notice of periodic invitations to tender, separate tenders were required to be submitted for the respective countries of storage; furthermore in accordance with Article 3 of Regulation No 1805/77 (Official Journal of 5 August 1977, No L 198, p. 19) the Commission was required to fix minimum selling prices for each Member State in which the products were stored. As a result of the erroneous notification by the Bundesanstalt the applicant's tenders were disregarded in fixing the minimum prices for meat stored in Denmark.

On 29 January 1979 a decision concerning those minimum prices and the quantities of beef to be imported free of the levy was taken in the competent management committee which decision, it appears, was immediately notified to the German intervention agency. The necessary formal Commission Decision was taken on the next day and published in the Official Journal of 16 February 1979 (No L 41, p. 49).

Since the applicant's tenders were less than the minimum prices fixed for the Federal Republic of Germany — and indeed for meat stored in Denmark — they were not taken into account in the invitation to tender.

The applicant was in fact informed of this by a communication from the Bundesanstalt of 29 January 1979 in which it was stated inter alia: We have to notify you that in accordance with the decision of the Management Committee for Beef and Veal your tender cannot be accepted.

On 7 May 1979 the applicant instituted proceedings before the Court of Justice against that decision. It claims that the Court should annul the said Commission Decision in so far as it affects the applicant. It relied upon the judgment in Case 92/78 which was delivered in the meantime and on the arguments advanced in that case by the Simmenthal company.

The Commission on the other hand considers primarily that the application is inadmissible on a number of grounds which I shall shortly discuss. It accordingly contends first of all that the application should be dismissed as inadmissible. In the alternative it considers that the application is in any event unfounded as regards the tenders relating to meat of the German intervention agency stored in Denmark.

In my opinion this case should be viewed as follows:

I — Admissibility

1. Of the grounds for the inadmissibility of the application the most important is that of failure to observe the time-limit.

2. A second objection of inadmissibility relates to that part of the contested decision in which the minimum price is fixed for meat of the German intervention agency stored in Denmark. In this connexion we have learned that when the applicant's tenders were passed on by the German intervention agency to the Commission an error occurred in so far as the applicant's tenders for intervention meat stored in Denmark were included under the tenders for intervention meat stored in Germany. The Commission thus claims that it did not know of the applicant's tenders when it issued its decision relating to the meat in Denmark and the tenders are thus not included in that part of the decision and the applicant accordingly is not affected by it.

3. In the view of the Commission the application is finally inadmissible because the applicant has no legal interest in the annulment of the contested decision.

4. This means that none of the objections submitted by the Commission require the application to be dismissed as inadmissible.

II — Substance

It is plainly possible for me to be more brief in this second part of my investigation, in particular in view of the judgment in Case 92/78.

1. Lengthy treatment is at any rate unnecessary for that part of the decision in which the minimum prices for the intervention meat stored in Germany were fixed and in which regard was certainly had for the applicant's tender.

2. With regard to the part of the decision relating to the meat of the German intervention agency stored in Denmark the Commission maintained that the failure to take the applicant's tenders into account stemmed from the error in their transmission and not from the unlawful arrangements. In fact even within the framework of other, proper arrangements the tenders would not have been taken into consideration and the contested arrangements were not the cause of their rejection. In addition the said error in transmission is something for which the German intervention agency is liable and thus cannot constitute an additional ground for annulment, for example on the argument that in so far as the Commission Decision relates to minimum prices for meat stored in Denmark it was adopted on an incomplete basis. If any other view were adopted it would lead to legal uncertainty since the errors of an intervention agency which the Commission cannot influence could mean that an entire tendering procedure might be ineffectual.

I am accordingly of the opinion that the application of the Könecke company should be considered admissible and that the contested decision should be declared null and void in so far as it has brought about a rejection of the tenders of the applicant. In view of this result the Commission should bear the costs of the proceedings.

1 Translated from the German.