JUDGMENT OF 5.3.1980 — CASE 76/79 KÖNECKE v COMMISSION

In Case 76/79

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 — Summary of the facts

II — Written procedure

III — Conclusions of the parties

IV — Submissions and arguments of the parties in the course of the written procedure

A — Admissibility

B — Substance

V — Written replies to the questions asked by the Court

VI — Oral procedure

Decision

Admissibility

Substance

Costs

I —. Summary of the facts

(a). Before 1 December each year, the Council, on a proposal from the Commission, shall draw up an estimate of meat which may be imported under suspension of the levy. This estimate shall take account, on the one hand, of the expected Community supplies of meat of a quality and type of cut suitable for industrial use and, on the other, of industrial needs (Article 14 (2) as amended).

(b). The Commission shall determine each quarter the quantities of meat which may be imported under total suspension of the levy and determine the detailed rules for the application of that article, and particularly those concerning control of the end use of imported meat (Article 14 (4) as amended).

(c). Importation under total suspension of the levy shall be conditional on production of an import licence issued for a quantity falling within the limits laid down each quarter; it may be made conditional, as far as necessary, on production of a purchase contract for frozen meat held by an intervention agency (linking or twinning arrangements; Article 14 (3) as amended).

II —. Written procedure

III —. Conclusions of the parties

(a). annul Commission Decision No 79/187 of 30 January 1979 in so far as it affects the applicant;

(b). order the Commission to pay costs.

(a). rule that the application is inadmissible;

(b). in the alternative declare that it is not well founded at least in so far as the applicant company's tenders for the meat of the German intervention agency stored in Denmark are concerned;

(c). order the applicant to pay the costs.

IV —. Submissions and arguments of the parties in the course of the written procedure

A —. Admissibility

(a). Decision No 79/187 was notified (by the communication from BALM of 29 January 1979 to Könecke) and was published (in the Official Journal of 16 February 1979). The application was lodged on 7 May 1979; the time-limit for lodging the application having regard to the time allowed on account of the distance from Germany was thus not observed unless the point from which it is calculated is taken as the publication of the contested decision in the Official Journal.

(b). The application is also inadmissible because the applicant has no legal interest in the annulment of Decision No 79/187.

(c). Since the annulment of the contested decision cannot either promote the interests of the applicant concerning the amendment of the future rules for the importation of meat for processing or obtain for him subsequently the award of a tender corresponding to his offer or compensation, the applicant has no legal interest in taking proceedings and his application must be dismissed as inadmissible.

(a). The contested decision was not notified either in accordance with the second paragraph of Article 191 or in accordance with the third paragraph of Article 173 of the EEC Treaty.

(b). The judgment of 6 March 1979 in Case 92/78 has established beyond doubt that the contested decision is unlawful. That finding is sufficient to establish that the applicant has a legal interest in taking proceedings. The applicant cannot be expected to accept a situation in which an unlawful decision, which is of direct and individual concern to it, continues in force.

B —. Substance

(a). The Commission recognizes that the application is well founded with regard to the applicant's tender for the meat stored in Germany.

(b). With regard to the tenders for meat stored in Denmark it must be found that the very fact that they were stored with the German intervention agency was sufficient to make them the concern of the Commission. Any errors in the transmission of the tenders are irrelevant to the fact that the contested decision also covers the applicant's tenders for the meat stored in Denmark; the errors in fact constitute an additional defect in the decision.

(a). Although the applicant's five tenders were duly lodged with the German intervention agency an error occurred whereby they were not transmitted to the Commission as tenders concerning the meat stored by the agency in Denmark. In accordance with Article 3 of Commission Regulation No 1805/77 of 4 August 1977 laying down, in respect of the beef and veal sector, special rules for the application of Regulation No 1055/77 on the storage and movement of products bought in by an intervention agency (Official Journal 1977, No L 198, p. 19) and with 8 of the General notice of periodic invitations to tender of 13 January 1978 the minimum purchase price is fixed separately for each Member State; consequently the applicant's tenders for the meat stored in Denmark are not covered by the contested decision in so far as it concerns that meat. The decision accordingly cannot adversely affect the applicant since it does not relate in any way to its tenders.

(b). With regard to the applicant's tender for the intervention meat stored in Germany the application, if it were considered admissible, would have to be considered well founded on the basis of the grounds for the judgment of the Court of 6 March 1979 in Case 92/78. Nevertheless that decision cannot have wider legal consequences for the applicant: its tender was amongst six of the lowest tenders in the category in question and 35 offers which, since they failed to reach the minimum price fixed, were likewise not taken into consideration although they were higher than those of the applicant. Accordingly the applicant's tender could not have been accepted in any case.

V —. Written replies to the questions asked by the Court

VI —. Oral procedure

1. In an application lodged on 7 May 1979 under the second paragraph of Article 173 of the EEC Treaty the applicant claims the annulment of Commission Decision No 79/187 of 30 January 1979 fixing the minimum selling prices for frozen beef put up for sale by the intervention agencies in accordance with Regulation No 2900/77 and specifying the quantities of frozen beef for processing which may be imported under special terms in the first quarter of 1979 (Official Journal 1979, No L 41, p. 49).

2. It is not in dispute that the applicant, in response to Notice of invitation to tender No D P 5, published in the Official Journal of 23 December 1978 (No C 308, p. 29) submitted five tenders each for 20 tonnes the first of which concerned a quantity of meat stored in the Federal Republic of Germany and the other four a quantity of meat stored in Denmark. By a letter from the German intervention agency, the Bundesanstalt für landwirtschaftliche Marktordnung, of 29 January 1979 the applicant was notified that, following a decision of the Management Committee for Beef and Veal, its tender was not accepted.

3. The information provided in the course of the procedure shows that in fact only the first of the said tenders was duly transmitted to the Commission; on the other hand the four tenders concerning the meat stored in Denmark were placed by the German intervention agency amongst the tenders for the meat stored in Germany so that they could not be taken into consideration by the Commission in fixing the minimum price applicable to the sale of the meat stored in Denmark. With regard to the tender duly taken into consideration by the Commission, this was rejected because the price offered by the applicant was lower than the minimum price adopted for the corresponding quantity of meat. The list which forms the basis of the decision in dispute shows that the quantity of meat for which the applicant submitted its tender brought in 76 tenders in all of which the 35 highest were accepted, the minimum price being 1831 units of account per tonne; the tender of the applicant came 71st with a tender price of 1687 units of account per tonne.

4. The applicant considers that the decision at issue is vitiated by the same defects as to the law as the decision annulled by the Court in its judgment of 6 March 1979 in Case 92/78, on the claim by S.p.A., Simmenthal [1979] ECR 777 and accordingly claims that it should be annulled. In order to avoid repetition the applicant refers to the arguments submitted by Simmenthal in Case 92/78 and to the grounds on which that judgment is based.

5. The Commision puts forward against this claim a series of submissions relating both to the admissibility and the substance of the application.

6. Since the Commission is of the view that the contested decision took effect with regard to the applicant by way of the notification which the latter received through the medium of the German intervention agency on 29 January 1979, it considers that the application was lodged after the expiry of the period laid down in the third paragraph of Article 173. The applicant on the other hand considers that its application was lodged within the prescribed period which began to run with the publication of the decision at issue in the Official Journal of 16 February 1979.

7. The objection advanced by the Commission that the application is out of time must be dismissed. In fact the application is against Decision No 79/187 of the Commission which is dated 30 January 1979. The communication which the German intervention agency addressed to the applicant on the basis of information obtained from the Management Committee for Beef and Veal one day before the decision was adopted cannot be considered as a notification of the decision itself. That communication does not in fact contain any details, apart from the rejection of the tender, which would have permitted the applicant to identify the decision taken and to ascertain its precise content in such a way as to enable it to exercise its right to institute proceedings. Since the contested decision was published in the Official Journal of 16 February 1979 the provisions of Article 81 of the Rules of Procedure indicate that the application was lodged within the time-limit.

8. Secondly the Commission claims that the applicant does not have a legal interest in taking proceedings since its application cannot be of any practical avail. In fact since the tendering procedure is definitively concluded it is impossible for the Commission to meet the applicant's claims even if it is successful in its action.

9. In raising that objection the Commision is in breach of its obligation under Article 176 of the Treaty when one of its acts has been declared void. According to that provision the institution whose act has been declared void shall be required to take the necessary measures to comply with the judgment of the Court of Justice. Even if in the circumstances it proves impossible to fulfil that obligation the application for annulment still constitutes an interest as the basis for possible proceedings for damages.

10. Finally the Commission considers that the application is devoid of purpose with regard to the four tenders for meat stored in Denmark. Since the German intervention agency failed duly to communicate those tenders to the Commission they were not included in the contested decision; accordingly the only matter at issue is the first tender of the applicant for the meat stored in the Federal Republic of Germany.

11. That objection by the Commission cannot be upheld and moreover it matters little whether it concerns the admissibility of the application or its substance. The five tenders were duly submitted by the applicant to the competent intervention agency. The applicant cannot accordingly be held responsible for the consequences of an error in transmission which occurred in between the intervention agency and the Commission. All the tenders submitted by the applicant must thus be considered as falling within the ambit of the contested decision and of this application.

12. Commission Decision No 79/187 is from the legal point of view identical in all respects with Decision No 78/258 which forms the subject-matter of the judgment of 6 March 1979. For the reasons stated in that judgment Decision No 79/187 must thus be annulled although such annulment extends only the individual decision rejecting the tender which followed, as regards the applicant and so far as the five tenders in question are concerned, from the contested decision.

13. It is consequently for the Commission, pursuant to the first paragraph of Article 176 of the Treaty, to review the individual situation of the applicant and, through the competent intervention agency, to take a fresh decision in its case.

14. As the Commission has stated it is particularly difficult to rectify the position of the applicant in this case since, unlike the situation in which the Court delivered its judgment of 6 March 1979 in Case 92/78, the applicant's tenders were higher than the price on release from storage normally prevailing at the time in question. In its judgment of 6 March 1979 the Court of Justice emphasized that the system introduced by the new Article 14 of Regulation No 805/68 may in no circumstances have the effect of ensuring that the processing industry buys intervention meat at a price lower than the price for reducing intervention agency stocks usually charged at the relevant time; this does not mean that a tender equal to or higher than the usual price for reducing intervention agency stocks automatically ensures that the tenderer is covered by the special arrangements set up by the said provision.

15. The Commission must accordingly appraise first whether, within the framework of tendering arrangements which should have been in accordance with the legal requirements set out in the judgment of 6 March 1979, the applicant's tenders could come within range. If the Commission considers that such was the case, then by virtue of Article 176 of the Treaty it will need, as respects the applicant, having due regard to the basic principles at present applicable to the management of the market in beef and veal, to take such decision as will provide due compensation for the damage which the applicant has suffered as a result of the decision which has been annulled.

16. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

17. Since the defendant has failed in its submissions, it must be ordered to pay the costs.

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

1 Commission Decision No 79/187 of 30 January 1979 fixing the minimum selling prices for frozen beef put up for sale by the intervention agencies in accordance with Regulation No 2900/77 and specifying the quantities of frozen beef for processing which may be imported under special terms in the first quarter of 1979 is annulled in so far as it concerns the applicant.

2 The Commission is ordered to pay the costs.