Report of the Judge-Rapporteur in Case C-142/91
I — Facts
1. Legal context
According to Article 1(1) of Commission Regulation (EEC) No 2200/87 of 8 July 1987 laying down general rules for the mobilization in the Community of products to be supplied as Community food aid (OJ 1987 L 204, p. 1), the procedures laid down in the regulation shall apply where it is decided, for the purpose of implementing a Community food-aid operation, to mobilize products in the Community, without prejudice to any special provisions adopted on a case-by-case basis by the Commission.
Under the third indent of Article 22(2)(b), the delivery security provided for in Article 12 of the regulation is to be withheld on a cumulative basis as follows:
Article 23 of the regulation provides as follows:
By Regulations (EEC) No 151/90 of 22 January 1990 (OJ 1990 L 18, p. 19), No 419/90 of 19 February 1990 (OJ 1990 L 44, p. 10) and No 840/90 of 2 April 1990 (OJ 1990 L 88, p. 11), the Commission initiated tendering procedures for the supply of refined rape seed oil as food aid to Uganda (Action No 401/89), Mozambique (Actions Nos 759/89 and 760/89) and Bangladesh (Action No 904/89) respectively.
Under Article 1 of the abovementioned Regulations Nos 151/90, 419/90 and 840/90:
2. Background to the dispute
In 1990 the Commission engaged the applicant to supply refined rape seed oil as food aid to Uganda (Action No 401/89), Mozambique (Actions Nos 759/89 and 760/89) and Bangladesh (Action No 904/89), the conditions being set out in Regulations Nos 151/90, 419/90 and 840/90 respectively.
The Commission subsequently released the delivery securities lodged by the applicant in respect of those supplies pursuant to Article 12 of Regulation No 2200/87.
On final settlement, the Commission withheld a total of ECU 104508.61 in particular for late delivery pursuant to Article 22(2) of Regulation No 2200/87.
The final sums in respect of the supplies to Uganda and Mozambique, which were paid in late 1990, were set out in a financial memorandum.
In the judgment of 12 December 1990 in Case C-172/89 Vandemoortele v Commission [1990] ECR I-4677, the Court declared that the Commission had no power, when paying the amount due, to withhold part of the amount payable because of a delay in delivery.
The applicant thereupon asked the Commission, by various letters dated 4 March 1991, to pay the amounts withheld, together with post-maturity interest in accordance with Article 18 of Regulation No 2200/87.
By a telex message of 27 March 1991, the Commission informed the applicant that it rejected the request for reimbursement in respect of Action No 401/89 (Uganda) and Actions Nos 759/89 and 760/89 (Mozambique) on the ground that they had been completely terminated.
II — Written procedure and forms of order sought by the parties
The application brought by Cebag was received at the Court Registry on 27 May 1991.
The written procedure followed the normal course. Upon hearing the Report of the Judge-Rapporteur and the Opinion of the Advocate General, the Court decided to assign the case to the Fifth Chamber pursuant to Article 95 of the Rules of Procedure. Pursuant to Article 44(a) of the Rules of Procedure, the Court (Fifth Chamber) decided that the procedure would not include an oral part.
The applicant claims that the Court should:
III — Pleas and arguments of the parties
In the reply, the applicant states that, by letter dated 4 July 1991, the Commission has undertaken to pay it the sum of ECU 39415.51, which was withheld on account of late delivery, in respect of Action No 904/89 (Bangladesh), together with interest of ECU 1775.31. Consequently, the applicant maintains its initial claim only as regards Action No 401/89 (Uganda) and Actions Nos 759/89 and 760/89 (Mozambique), which reduces its claims to the payment of ECU 65093.10, together with post-maturity interest.
A — Admissibility
The applicant's principal claim is that the Commission's acceptance of its tenders for the operations in question constituted a contract between the two parties. The applicant argues in this connection that the Commission must have accepted that that was the case, since, in accepting the tenders, it stated that the contract has been awarded to your company.
The applicant takes the view that the argument that Article 23 of Regulation No 2200/87 does not constitute a contractual arbitration clause because it forms part of a regulation does not stand up. The provisions of the specific regulations underlying the tendering procedure, namely Regulations Nos 151/90 and 419/90, coupled with the general provisions set out in Regulation No 2200/87, to which Article 1 of each of those regulations refers, form an integral part of the contract.
The applicant further considers that the argument that the legal relationship between the Commission and itself could hardly be described as contractual in so far as it is entirely governed by Community legislation must likewise be rejected. The decisive point, in the applicant's view, is whether the parties entered into reciprocal undertakings. The fact that the ensuing relationship was governed by the relevant legislation does not have the effect of depriving the relationship of its contractual nature.
The applicant considers that that view is confirmed by the fact that Article 181 of the Treaty makes no distinction between arbitration clauses contained in contracts governed by public law and those contained in contracts governed by private law, whereas it is characteristic of a public-law contract that the parties' rights and obligations are determined by law. Bearing in mind additionally that Article 181 does not distinguish between Community public law and the public law of the Member States, it follows that the Court has jurisdiction to entertain a dispute by virtue of an arbitration clause contained in a contract governed by the Community legislation applicable to that contract.
Finally, the applicant is also unable to agree with the Commission's view that a situation in which the parties' rights and obligations are determined unilaterally cannot be described as contractual.
The applicant argues that, whilst the parties did reach agreement on the applicability of the conditions connected with the tender, it is none the less true that it was entirely free to accept them or not to accept them. The fact that those conditions were fixed unilaterally does not deprive the relationship of its contractual nature, especially since, in practice, the terms and conditions of a contract are frequently determined unilaterally by one of the parties, for instance in the form of general conditions.
In the reply, the applicant claims, in the alternative, that the telex message of 27 March 1991 is a decision which may be contested on the basis of Article 173 of the Treaty in so far as it contains a legal act intended to create legal effects in regard to the applicant. In the applicant's view, the telex message in question does not merely confirm an earlier act, namely the deductions decided earlier, but contains the result of the balancing of interests which the Commission was required to perform in the light of the Court's judgment in Vandemoortele v Commission. That new fact should have prompted the Commission to weigh up the various interests concerned, namely the general interest of safeguarding, on the one hand, the principle of legality and, on the other, the principle of legal certainty.
The applicant therefore claims that the telex message has legal effects in its own right and that an action will lie against that message under Article 173.
For its part, the Commission contends that the action is inadmissible on the basis of either Article 181 or Article 173 of the Treaty.
The Commission contends, principally, that Article 23 of Regulation No 2200/87 should not be regarded as an arbitration clause within the meaning of Article 181 of the Treaty.
The Commission points out in this regard that, in Case C-226/89 Haniel Spedition v Commission [1991] ECR I-1599 (summary publication only), it argued that the Court's jurisdiction with regard to the payment of amounts withheld was based on Article 181 of the Treaty, but that the Advocate General had taken a different view, as he had already done in Vandemoortele v Commission, cited above.
The Advocate General considered that the challenge in respect of the deductions should be treated as an action for annulment under Article 173 and that the claim for payment of the unlawful deductions fell to be dealt with under Article 176 of the Treaty. In his view, Article 23 does not constitute an arbitration clause inasmuch as it forms part of a regulation and the relationship between the parties concerned is governed entirely by the Community legislation, which allows no leeway for contractual negotiation.
In the Commission's view, Article 23 of Regulation No 2200/87 does not confer on the Court any new, arbitral jurisdiction, but simply refers to its existing jurisdiction already provided for in the Treaty, to judge any dispute resulting from the carrying out of, or the failure to carry out supply operations, or from the interpretation of Community provisions concerning supply operations covered by Regulation No 2200/87 and the regulations concerning the practical arrangements for each operation. Inasmuch as those Community provisions govern all the aspects of the legal relationship arising between the Commission and the successful tenderer, the Court's jurisdiction extends to all aspects of that legal relationship; there can therefore be no question of the applicability of any national law or of any extension or modification of this jurisdiction by an arbitration clause.
It therefore follows, according to the Commission, that Article 23 may not, in those circumstances, be regarded as an arbitration clause within the meaning of Article 181 of the Treaty, even though the Commission may sometimes use terms appertaining to agreements or contracts in this context.
On the one hand, Article 21 allows the parties concerned to confer on the Court jurisdiction to rule on certain questions concerning the contract. On the other, those contracts normally prescribe, either explicitly or tacitly, the proper law of the contract, which will normally be the law of a Member State or of a non-member country.
The Commission further considers that, where it adopts special provisions on a case-by-case basis for certain food-aid operations, as moreover it is entitled to do under Regulation No 2200/87, it acts by virtue of the power to adopt regulations which it derives from the applicable Community law, in particular Council Regulation (EEC) No 3972/86 of 22 December 1986 on food-aid policy and food-aid management (OJ 1986 L 370, p. 1), and not by virtue of freedom of contract.
The Commission points out that the reason why, pursuant to Article 173 of the Treaty, the Court, in Vandemoortele v Commission, annulled the decision relating to amounts withheld and, in Haniel Spedition v Commission, ordered the Commission to pay the amounts withheld without examining the question of Article 181, was that it took the same view as the Advocate General had taken in those cases.
The Commission adds that this is confirmed by the fact that, in Vandemoortele v Commission and Haniel Spedition v Commission, the Court assessed the legal relationship in question only in the light of the applicable provisions of the Community legislation and the principles of Community law.
It therefore follows that, in so far as the action is based on Article 181 of the Treaty, it has to be declared inadmissible, both as regards the claim for payment of the sums withheld and in so far as it seeks the annulment of the alleged decision contained in the telex message of 27 March 1991.
Should the Court hold, however, that the applicant's application should be declared well-founded under Article 173 of the Treaty, even though reference is made solely to Article 181 of the Treaty, the Commission contends, in the alternative, that the application should also be declared inadmissible in this event.
The Commission considers that if follows from the Court's judgments in Vandemoortele v Commission and Haniel Spedition v Commission (cited above) that the applicant would be entitled to payment of the sums in question under Article 176 of the Treaty only if the Commission's decision to withhold these amounts were annulled by the Court under Article 173 of the Treaty at the applicant's request. That is not the case here.
Apart from payment of the amounts withheld, the applicant is seeking only the annulment of the telex message at issue. The Commission's view is that the telex message does not embody any decision with regard to the withholding of the amounts in question, but merely constitutes the Commission's response to the applicant's request for payment, by means of which the Commission merely rejected the request for the annulment of the deductions made in respect of the payments relating to Actions Nos 401/89 (Uganda), 759/89 and 760/89 (Mozambique).
The Commission adds that, in so far as the final statement and the payment of the amounts due in respect of those three operations were received by the applicant in October 1990, the applicant's telex message of 4 March 1991 did not reach the Commission until well after the two-month deadline prescribed by the third paragraph of Article 173 of the Treaty. The Commission consequently had no reason to go back on that settlement.
This is all the more true given that, in addition, the applicant has not shown what justification there is for an obligation to balance interests, as is claimed for the first time in its reply, or why — assuming such an obligation to exist — that balancing of interests should necessarily give rise to a repayment.
In contrast, since the applicant's claim in respect of Action No 904/89 (Bangladesh) was received by the Commission in good time in so far as final settlement did not take place until 21 January 1991, that claim was accepted.
The Commission considers that, in any event, this alternative plea of admissibility, based on Article 173 of the Treaty, was introduced by the applicant for the first time in the reply contrary to Article 42(2) of the Rules of Procedure, even though, by way of precaution and in the alternative, the Commission also challenged the admissibility of the action under the second paragraph of Article 173 of the Treaty in its defence.
On top of this, that plea is in fact based on a new substantive plea which was not set out in the application, namely that the Court's judgment in Vandemoortele v Commission put the Commission under a duty to balance the interests at stake in order to determine whether the amounts withheld in the case which had already been settled should be refunded.
B — Substance
The applicant claims that the deductions made by the Commission on the occasion of the final payment were unlawful.
On the one hand, in Vandemoortele v Commission, cited above, the Court declared as regards Article 22(2) of Regulation No 2200/87 that the application of a deduction subsequent to the release of the delivery security had no legal basis (paragraph 14 of the judgment). On the other hand, neither the other provisions of Regulation No 2200/87 nor the provisions of the specific tender regulations, namely Regulations Nos 151/90, 419/90 and 840/90, provided any legal basis for the deductions.
Finally, the applicant refers to that which the Court has consistently held (see in particular the judgment in Case 117/83 Könecke [1984] ECR 3291) to the effect that a sanction, even a non-penal one, can be imposed only if it has a clear and unambiguous legal basis.
The applicant consequently seeks the repayment of the amounts in dispute, together with post-maturity interest as provided for in Article 18 of Regulation No 2200/87.
The Commission points out in limine that it acceded to the applicant's request, as set out in the application as regards Action No 904/89 (Bangladesh) in so far as it did not pay the outstanding amount due for that operation until 21 January 1991.
As regards the other amounts claimed, the Commission admits that, as the Court has held in Vandemoortele v Commission and Haniel Spedition v Commission, it should not have made those deductions when settling the outstanding balances when it had already released the relevant securities.
The Commission observes, however, that, prior to the Court's judgment in Vandemoortele v Commission, the applicant had never raised any objection to the imposition of such deductions on payment of the outstanding balance. Since the applicant did not contest the substantive correctness of the deductions made in respect of the disputed operations, it made no objection either to the final settlement in the operations covered by the present action, which took place before the Court had ruled in Vandemoortele v Commission.
The Commission consequently considers that there was no reason why it should go back on its decision with regard to the first three operations.
The Commission adds by way of information that the possibility of applying such deductions on final payment has since been provided for by Article 22 of Regulation No 2200/87, as amended by Commission Regulation (EEC) No 790/91 of 27 March 1991 (OJ 1991 L 81, p. 108).
The Commission contends in the alternative that the claim be dismissed as unfounded.
1 Language of the case: Dutch.