Judgment — ECLI:EU:T:2002:246
Date: 2002-10-09
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Public procurement in the European Union
Concepts: Food aid;Proceedings relating to a contract
Procedure: Arbitration clause - successful
Origin: Germany

Summary of the Judgment 
1. Procedure — Reference to the Court of First Instance on the basis of an arbitration 
clause — Condition — Existence of a contract — Tied relationship between the 
successful tenderer for the supply of food aid and the Commission — Contractual 
nature 
(Council Regulation No 2802/98; Commission Regulation No 111/1999, Art. 16) 
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SUMMARY — CASE T-134/01 
2. Procedure — Reference to the Court of First Instance on the basis of an arbitration 
clause •—• Ancillary claim for payment of default interest — Admissible 
3. Agriculture — Common agricultural policy •—• Food aid — Implementation — Ten­
dering procedure for the mobilisation of pigmeat — Obligation of the successful 
tenderer for the supply of the products to send certificates for each means of transport 
envisaged by the successful tenderer for the supply of the transport — Not part of 
contract 
(Commission Regulation No 1135/1999, Art. 6, third para.) 
1. The absence of an express contractual 
categorisation of the acceptance by the 
Commission of a tenderer's bid to 
supply food aid in the context of 
Regulation No 111/1999 laying down 
general rules for the application of 
Regulation No 2802/98, does not in 
itself preclude the possibility that the 
relationship between the Commission 
and the successful tenderer may be 
regarded as contractual in nature. The 
successful tenderer's bid and its accept­
ance by the Commission created a legal 
relationship between the two parties 
which gave rise to reciprocal rights and 
obligations between them and satisfies 
the criteria of a bilateral contract. The 
existence of such a contractual rela­
tionship is confirmed by the existence 
of the clause, contained in Article 16 of 
Regulation No 111/1999, according to 
which the Court of Justice of the 
European Communities is to be com­
petent to resolve any dispute resulting 
from the implementation or the non-
implementation or from the interpret­
ation of the rules governing supply 
operations carried out in accordance 
with that regulation. 
(see paras 52-54) 
2. It is generally accepted in the laws of 
the Member States that a delay in 
payment involves a loss for which the 
creditor must be compensated. Simi­
larly, Article 78 of the United Nations 
Convention on Contracts for the Inter­
national Sale of Goods provides that if 
a party does not pay the price or any 
other sum which is due, the other party 
is entitled to interest on that sum. 
Community law recognises an obli­
gation to pay such compensation as a 
general principle of law. If an ancillary 
claim is for payment of default interest 
as flat-rate and abstract compensation, 
it is not necessary for it to be supported 
by specific reasons and is, as such, 
admissible. 
(see paras 56-57) 
3. In the context of an action for perform­
ance of a contract between the success­
ful tenderer for the supply of food aid 
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HANS FUCHS v COMMISSION 
and the Commission, the mere refer­
ence, without previous indication, in 
the third paragraph of Article 6 of 
Regulation No 1135/1999 of 28 May 
1999 opening a second invitation to 
tender for the mobilisation of pigmeat 
on the Community market with a view 
to its subsequent delivery to Russia, to 
the models to be sent by the Commis­
sion to operators at their request, is not 
sufficient to impose an additional obli­
gation for the successful tenderer for 
the supply of the products to send 
certificates for each means of transport 
envisaged by the successful tenderer for 
the supply of the transport. The latter 
could not reasonably expect that those 
models involve an extension of its 
obligations, the more so since the 
models, to which Article 6 of Regu­
lation No 1135/1999 refers, were not 
available in its language. Thus, such an 
obligation did not become part of the 
contractual consensus between the 
parties. 
(see para. 74) 
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