Opinion of the Advocate General — ECLI:EU:C:1998:553
Date: 1998-11-19
Language of the case: German
Based on: Treaty establishing the European Atomic Energy Community (1957)
Subject matter: Supply agency;Euratom matters
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Germany

Summary 
I — Community legislation I - 2062 
Exclusive right of the Agency to conclude supply contracts I - 2063 
Procedure for balancing demand against supply I - 2064 
Price I -2067 
II — Facts and procedure I - 2068 
III — The judgment under appeal I - 2071 
CaseT-149/94 I - 2 0 7 1 
CaseT-181/94 I - 2 0 7 2 
The action for annulment I - 2072 
The action for damages I - 2078 
IV — The appeal I - 2 0 7 8 
V — Examination of the pleas in support of the appeal I - 2079 
Preliminary observations I - 2080 
A — CaseT-149/94 I - 2 0 8 1 
1. The plea alleging misuse of the powers of the Agency as set out in 
Article 5 bis (f) of the Rules I - 2081 
2. The plea alleging an infringement of the time-limit laid down by 
Article 5 bis (f) of the Rules I - 2088 
3. The plea alleging infringement of the rules on the division of 
powers I - 2089 
4. The plea alleging breach of the obligation to state reasons I - 2091 
5. The plea alleging misuse of the Agency's powers I - 2094 
Β — CaseT-181/94 I -2096 
The action for annulment I - 2096 
1. The plea alleging infringement of Article 5 bis of the Rules and the 
provisions on supplies in Chapter 6 of the Treaty I - 2096 
* Original language: French. 
I - 2061 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
(a) The first limb, alleging disregard of the scope of the Agency's 
powers I - 2096 
(b) The second limb, alleging infringement of the aims of Articles 1 and 
2 of the Treaty I - 2105 
2. The plea alleging breach of the principle of legal certainty and of the prin­
ciples of equal treatment and proportionality I - 2106 
(a) Breach of the principle of legal certainty I - 2106 
(b) Breach of the principle of equal treatment I - 2107 
(c) Breach of the principle of proportionality I - 2108 
3. The plea alleging breach of the rules on the division of powers I-2109 
4. The plea alleging breach of the obligation to state reasons I-2110 
5. The plea alleging misuse of powers I - 2112 
The action for damages I - 2114 
VI — Costs I-2114 
Conclusion I-2115 
1. This appeal, which has been lodged by 
Kernkraftwerke Lippe-Ems G m b H ('KLE' 
or 'the appellant'), a company governed by 
German law, against the judgment of the 
Court of First Instance of 25 February 1997 
in Kernkraftwerke Lippe-Ems ν Commission 1 
('the judgment under appeal' or 'the judg­
ment'), raises various questions concerning 
the system for supplying Community users 
with ores and nuclear fuels, as laid down by 
the Treaty setting up the European Atomic 
Energy Community ('the Treaty'). 
2. In particular, the Court is asked to give a 
ruling on the extent of the powers of the 
Euratom Supply Agency ('the Agency') where 
the supply contracts which it has the task of 
concluding relate to source materials from 
outside the Community. 
I — Community legislation 
3. According to the second paragraph of 
Article 1 of the Treaty, the task of the Com­
munity is 'to contribute to the raising of the 
standard of living in the Member States and 
to the development of relations with the other 
countries by creating the conditions neces­
sary for the speedy establishment and growth 
of nuclear industries'. 
4. Pursuant to Article 2(d) of the Treaty, the 
Community is to 'ensure that all users in the 1 — Joined Cases T-149/94 and T-181/94 [1997] ECR II-161. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
Community receive a regular and equitable 
supply of ores and nuclear fuels'. The fulfil­
ment of this obligation is the subject of Title 
II, Chapter 6 (Articles 52 to 76), which sets 
up a common system for the supply of ores, 
source materials and special fissile materials. 
5. Article 52(1) of the Treaty provides that 
'[the] supply of ores, source materials and 
special fissile materials shall be ensured ... by 
means of a common supply policy on the 
principle of equal access to sources of sup­
ply'. For this purpose, Article 52(2)(a) pro­
hibits 'all practices designed to secure a privi­
leged position for certain users'. 
6. In order to implement the abovementioned 
policy, Article 52(2)(b) provides for the estab­
lishment of the Agency, which is to have legal 
personality and financial autonomy. 2 
7. Article 53 of the Treaty provides as 
follows: 
'The Agency shall be under the supervision 
of the Commission, which shall issue direc­
tives to it, possess a right of veto over its 
decisions and appoint its Director-General 
and Deputy Director-General. 
Any act, whether implied or expressed, per­
formed by the Agency in the exercise of its 
right of option or of its exclusive right to 
conclude supply contracts, may be referred 
by the parties concerned to the Commission, 
which shall give a decision thereon within 
one month.' 
Exclusive right of the Agency to conclude 
supply contracts 
8. To carry out its task in the matter of 
supply, the Agency has, in particular, 'an 
exclusive right to conclude contracts relating 
to the supply of ores, source materials and 
special fissile materials coming from inside 
the Community or from outside'. 3 
9. Under Article 55 of the Treaty, the Member 
States are to communicate or cause to be 
communicated to the Agency all the informa­
tion necessary to enable it to exercise its 
exclusive right to conclude supply contracts. 
2 — Article 54. 3 — Article 52(2)(b) of the Treaty. 
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OPINION OF MR LÉGER — CASE C-161/97 Ρ 
10. The supply of ores and source materials 
from outside the Community is governed 
mainly by Article 64 of the Treaty, which 
again states that the Agency, acting where 
appropriate within the framework of agree­
ments concluded between the Community 
and a third State or an international organisa­
tion, 'shall, subject to the exceptions provided 
for in this Treaty, have the exclusive right to 
enter into agreements or contracts'. 
Procedure for balancing demand against supply 
11. The procedure for balancing demand 
against supply, which is laid down by Article 
60 for supplies of materials from inside the 
Community, is applied by the first paragraph 
of Article 65 to supplies from outside the 
Community. 
12. Article 60 provides as follows: 
'Potential users shall periodically inform the 
Agency of the supplies they require, speci­
fying the quantities, the physical and chemical 
nature, the place of origin, the intended use, 
delivery dates and price terms, which are to 
form the terms and conditions of the supply 
contract which they wish to conclude. 
Similarly, producers shall inform the Agency 
of offers which they are able to make, stating 
all the specifications, and in particular the 
duration of contracts, required to enable their 
production programmes to be drawn up. Such 
contracts shall be of not more than 10 years' 
duration save with the agreement of the 
Commission. 
The Agency shall inform all potential users of 
the offers and of the volume of applications 
which it has received and shall call upon them 
to place their orders by a specified time-limit. 
When the Agency has received all such orders, 
it shall make known the terms on which it 
can meet them. 
If the Agency cannot meet in their entirety all 
the orders received, it shall, subject to the 
provisions of Articles 68 and 69, share out 
the supplies proportionately among the orders 
relating to each offer. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
Agency rules, which shall require approval 
by the Commission, shall determine the 
manner in which demand is to be balanced 
against supply.' 
13. The first paragraph of Article 61 of the 
Treaty, which appears in Section II relating to 
materials from inside the Community, states 
that 'the Agency shall meet all orders unless 
prevented f rom doing so b y legal o r material 
obstacles'. 
14. The second paragraph of Article 65 pro­
vides that 'the Agency may decide on the 
geographical origin of supplies provided that 
conditions which are at least as favourable as 
those specified in the order are thereby secured 
for the user'. 
15. On 5 May 1960 the Agency, pursuant to 
the sixth paragraph of Article 60 of the Treaty, 
adopted rules determining the manner in 
which demand is to be balanced against the 
supply of ores, source materials and special 
fissile materials. 4 
16. The Rules lay down simplified proce­
dures for balancing demand against the supply 
of ores. 
17. Accordingly the first paragraph of Article 
5 of the Rules provides: 
'If, in respect of a specific product and where 
in particular the Agency takes the initiative, 
the Commission, having heard the Advisory 
Committee, finds that the situation on the 
market shows a clear surplus of supply over 
demand, it may, by means of an appropriate 
directive, call upon the Agency to apply the 
simplified procedure ...' 
18. According to this simplified procedure, 
users and producers are empowered to nego­
tiate directly and to sign supply contracts, 
after the Agency has laid down the general 
conditions to be satisfied by such contracts. 
The contracts are then to be communicated 
to the Agency and are deemed to be con­
cluded by it if no objection is notified by the 
Agency to the parties within eight days of 
receipt of the contracts. 4 — OJ, Special Edition 1959-1962, p. 46, 'the Rules'. 
I - 2065 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
19. This procedure does not apply to supply 
contracts relating to special fissile materials. 5 
20. Article 5 bis of the Rules, which was 
inserted by the Agency Regulation of 15 July 
1975, 6 provides, in relation to ores and source 
materials, for a new simplified procedure 
which, while ensuring that the Agency has 
complete information on the market, 7 auth­
orises users ' to invite tenders directly from 
the producers of their choice and to negotiate 
the supply contract freely with the latter'. 8 
21. However, Article 5 bis of the Rules, as 
amended, provides: 
'(c) The supply contract shall include at least 
the following information: 
1. designation of the contracting parties, 
2. quantities of materials to be supplied, 
3. annual calendar of delivery dates, 
4. nature of the materials to be supplied, 
5. country of origin of the materials to 
be supplied. If the supplier is unable 
to provide this information at the time 
of entering into the contract, he shall 
give the user and the Agency an under­
taking that he will subsequently inform 
them in writing of the country of origin 
of each part delivery, 
6. price and terms of payment, 
7. duration of the contracts; 
(d) the contract shall, for the purposes of its 
conclusion, be submitted to the Agency 
for signature within 10 working days; 
5 — Last paragraph of Article 5. 
6 — OJ 1975 L 193, p. 37. 
7 — Article 5 bis (b). 
8 — Article 5 bis (a). 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
(f) the Agency shall act, either by concluding 
or refusing to conclude the contract, 
within 10 working days from the date of 
receipt thereof; 
(g) a refusal to conclude the contract shall be 
notified to the parties concerned in a rea­
soned decision. This decision may be 
referred to the Commission in accordance 
with the provisions of Article VIII (3) of 
the Statutes of the Euratom Supply 
Agency.' 
Price 
22. For supplies from inside or outside the 
Community, Article 67 of the Treaty provides 
that 'save where exceptions are provided for 
in this Treaty, prices shall be determined as a 
result of balancing supply against demand as 
provided in Article 60; the national regula­
tions of the Member States shall not contra­
vene such provisions'. 
23. The first paragraph of Article 68 prohibits 
'pricing practices designed to secure a privi­
leged position for certain users, in violation 
of the principle of equal access ...'. 
24. Under Article 69, 'the Council may fix 
prices, acting unanimously on a proposal from 
the Commission', while the Agency 'may 
propose to the users who have placed orders 
that prices be equalised'. 
25. The Agreement between the European 
Economic Community and the European 
Atomic Energy Community, on the one hand, 
and the Union of Soviet Socialist Republics, 
on the other, on trade and commercial and 
economic cooperation, signed on 18 December 
1989 and concluded on behalf of the Euro­
pean Atomic Energy Community by Com­
mission Decision 90/117/Euratom of 27 Feb­
ruary 1990,9 applies to nuclear materials, 
which is clear from Article 2(1) of the Agree­
ment. Article 14 provides that 'goods shall be 
traded between the Contracting Parties at 
market-related prices'. 
26. Reference must also be made to the 
Council Resolution of 16 September 1986 
concerning new Community energy policy 
objectives for 1995 and convergence of the 
policies of the Member States, 10 point 5 of 
which states that 'the energy policy of the 
Community must endeavour' to ensure: 
9 — OJ 1990 L 68, p. 2, 'the Trade Agreement*. 
10 — OJ 1986 C 241, p. 1. 
I - 2067 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
'(a) more secure conditions of supply and 
reduced risks of sudden fluctuations in 
energy prices through: 
— geographical diversification of the Com­
munity's external sources of supply'. 
II — Facts and procedure 
27. In its judgment, the Court of First Instance 
found as follows: 
'1 The applicant [KLE] ... owns and oper­
ates a nuclear power station in Lower 
Saxony, Germany. It states that it fol­
lows a medium-term fuel supply policy 
and concludes supply contracts at regular 
intervals to cover its fuel requirements 
for up to five trading years. 
2 In June 1993 it invited tenders for the 
supply of natural uranium in the form of 
uranium hexafluoride (UF 6). O n 10 and 
22 November 1993, it concluded a supply 
contract with the company which had 
made the most attractive offer, British 
Nuclear Fuels plc (hereinafter "BNFL"), 
established in the United Kingdom. 
Under that contract, 400 tonnes of nat­
ural uranium in the form of U F 6 were to 
be delivered by 31 March 1995 at the 
latest to an enrichment company estab­
lished within the Community. The pur­
chase price agreed was US $22 per kilo­
gram, excluding VAT. The contract was 
silent as to the place of origin of the ura­
nium to be supplied, but BNFL under­
took to inform KLE and the Euratom 
Supply Agency... of the country of origin 
on the occasion of each partial delivery 
at the latest. The contract stated that it 
was to take effect only with the agree­
ment of the Agency. 
3 Article 5 bis (d) of the Rules of the 
Supply Agency of 5 May 1960 ... pro­
vides that under a "simplified proce­
dure" a supply contract is, for the pur­
poses of its conclusion, to be submitted 
to the Agency for signature. Under 
Article 5 bis (f), the Agency then has ten 
working days within which to act, either 
by concluding or by refusing to con­
clude the contract. 
4 O n 29 November 1993 the Agency 
received for signature the contract pro­
posed by KLE and BNFL. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
5 By letter of 10 December 1993, received 
on 13 December 1993, the last day of the 
period for signature of ten working days, 
the Agency asked KLE and BNFL for 
information as to the origin of the ura­
nium which was the subject of the con­
tract. O n 14 December 1993 BNFL 
informed the Agency that the uranium 
would come from the Commonwealth 
of Independent States (CIS), probably 
Russia. 
6 By letter of 20 December 1993 the 
Agency informed the parties that its 
policy was to see to it that users in the 
[European Atomic Energy] Community 
(hereinafter "the Community") "[did] 
not become overdependent on any single 
source of supply beyond reasonable 
limits, and that the acquisition of nuclear 
materials from CIS Republics [took] place 
at fair prices related to those of the 
market (i. e. reflecting cost of produc­
tion and compatible with prices of pro­
ducers in market economy countries)". 
The Agency stated that its policy of 
diversification was aimed at confining 
the proportion of supplies from the CIS 
to 20 to 25% of individual Community 
users' needs. It considered that the con­
tract submitted by KLE might make it 
too dependent on uranium from the CIS. 
It calculated that, taking into account 
total deliveries to KLE during the pre­
vious three years, KLE was entitled to 
acquire about 45 tonnes a year of natural 
uranium of CIS origin. KLE had, how­
ever, already contracted for quantities far 
exceeding the level of reasonable 
dependency for several years. Moreover, 
the proposed prices did not reflect normal 
production costs and were not 
comparable with prices charged in market 
economy countries. The Agency there­
fore considered that it was not appro­
priate to conclude the contract, but still 
asked the parties to submit their com­
ments before it took a final decision. 
7 O n 29 December 1993 KLE referred the 
matter to the Commission under the 
second paragraph of Article 53 of the 
Treaty, alleging that the Agency had failed 
to act. 
8 O n 6 January 1994 it was notified of 
Decision N o 1/94 of the Agency con­
cerning the supply contract submitted 
on 29 November 1993. Pursuant to that 
decision, the Agency signed the contract 
of 10 and 22 November 1993 between 
KLE and BNFL with the addition of a 
condition that the natural uranium to be 
supplied could not come directly or in­
directly from the CIS. 
9 O n 10 January 1994 the Commission 
informed KLE's representatives that in 
its opinion the Agency's decision com­
municated to KLE on 6 January had been 
taken within the time-limit laid down, 
so that the reference to the Commission 
was now devoid of purpose. 
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OPINION OF MR LÉGER — CASE C-161/97 Ρ 
10 By letter of 20 January 1994 KLE made 
additional submissions in the procedure 
initiated on 29 December 1993, to take 
account of Decision N o 1/94. 
11 By another letter of the same date, it 
referred Decision N o 1/94 to the Com­
mission pursuant to the second para­
graph of Article 53 of the Treaty. 
12 With respect to the first procedure, con­
cerning the Agency's alleged failure to 
act, the Commission adopted on 4 Feb­
ruary 1994 Decision 94/95/Euratom 
relating to a procedure in application of 
the second paragraph of Article 53 of the 
Euratom Treaty (OJ 1994 L 48, p. 45). It 
rejected the requests made by KLE, 
which were based on the claim that the 
Agency had not taken a decision within 
the time-limit and asked the Commis­
sion in particular to instruct the Agency 
to conclude the contract of 10 and 22 
November 1993. The Commission con­
sidered that the Agency had not failed to 
act, since it had been entitled to com­
plete its documentation and the period 
of ten working days had therefore not 
started to run until the date when the 
additional information requested was 
received, namely 14 December 1993, and 
had not expired until 6 January 1994, the 
date on which Decision N o 1/94 was 
actually taken. 
13 With respect to the procedure concerning 
Decision N o 1/94, the Commission 
adopted on 21 February 1994 Decision 
94/285/Euratom relating to a procedure 
in application of the second paragraph of 
Article 53 of the Euratom Treaty (OJ 
1995 L 122, p. 30). It considered that the 
Agency's decision was lawful on its merits 
and therefore rejected KLE's requests. 
14 In those circumstances, KLE considered 
that the supply contract at issue could 
not be performed. BNFL and KLE did 
not proceed with it. 
15 On 8 and 14 March 1994 KLE and BNFL 
concluded a new contract for the supply 
of 400 tonnes of uranium in the form of 
U F 6 at a price of US $27 per kilogram, 
subject to the condition that the uranium 
did not come directly or indirectly from 
the CIS. That contract was concluded by 
the Agency on 30 March 1994.' 
28. Those were the circumstances in which 
KLE brought proceedings in Case T-149/94 
and Case T-181/94 for annulment of Com­
mission Decisions 94/95 and 94/285 respec­
tively; in Case T-l 81/94, it also brought an 
order requiring the Community to pay the 
applicant damages of DM 3 511 279.30, with 
interest at 6% per annum from 7 April 1994. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
III — The judgment under appeal 
Case T-149/94 
29. Before the Court of First Instance the 
appellant adduced five pleas in law, alleging 
infringement of Article 5 bis (f) of the Rules 
and of the provisions on supplies in Chapter 
6 of the Treaty, breach of the principles of 
proportionality and legal certainty, breach of 
the rules on the division of powers, breach of 
the obligation to state reasons, and misuse of 
powers. 
30. The first and second pleas question 
whether the Agency was entitled, first, to ask 
for supplementary information concerning, in 
this case, the origin of the source materials, 
and, second, not to take a final decision until 
it had completed its documentation, that is, 
until it had in its possession the minimum 
information required by Article 5 bis (c) of 
the Rules. The appellant argued that it was 
excessive to ask for supplementary informa­
tion and that the delay in taking a decision 
exceeded the time needed to attain the object 
of completing the documentation. According 
to the appellant, the arbitrary delay in taking 
decisions concerning the conclusion of the 
contracts infringed the principle of legal 
certainty. 
31. The Court of First Instance observed that 
it was clear from Article 5 bis (c) of the Rules 
that the geographical origin of the materials 
to be supplied was one of the principal ele­
ments of a supply contract which had to be 
communicated to the Agency under Article 5 
bis of the Rules. The Court stated that it was 
essential for the Agency to know the geo­
graphical origin of the supplies in order to 
ensure reliability of supply, which was the 
aim of the supply policy pursued. 11 
32. The Court added that it was clear from 
Article 5 bis (c) of the Rules that communica­
tion of the country of origin was permissible 
at a later date only if the supplier was unable 
to provide that information at the time of 
entering into the contract. However, according 
to the Court, the appellant and its supplier 
had agreed, at least implicitly, that the source 
materials would come from the CIS. 12 
33. Therefore the Court concluded that, by 
not stating the origin of the uranium in the 
supply contract, even though it had been 
agreed between the parties at least implicitly, 
the appellant was itself the cause of the Agen­
cy's administrative difficulties in coming to a 
decision. In those circumstances, the Court 
found that the appellant was not entitled to 
rely on Article 5 bis (c) of the Rules, which 
provides for an expedited procedure in the 
form of a period of ten working days within 
11 — Paragraph 35 of the judgment. 
12 — Paragraphs 36 and 37. 
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OPINION OF MR LÉGER — CASE C-161/97 Ρ 
which the Agency must act, for cases which 
present no problems. 
34. O n the other hand, the Court considered 
that, in this particular case, the Agency was 
entitled, before the expiry of the period pro­
vided for in Article 5 bis (f), to ask the par­
ties to provide the missing documentation by 
informing it of the origin of the materials to 
be supplied. 
35. The Court found that the time taken by 
the Agency to reach a decision was reason­
able and did not infringe Article 5 bis (f) of 
the Rules or breach the principles of propor­
tionality and legal certainty, so that the first 
and second pleas had to be dismissed as 
unfounded. 
36. Finding that the appellant had not pur­
sued the third plea in law — alleging breach 
of the rules on the division of powers — the 
Court took the view that it was unnecessary 
to rule on whether it was well-founded.1 3 
37. The Court went on to dismiss the fourth 
plea in law — alleging that Decision 94/95 
contained no reasoning — because, according 
to the Court, the decision clearly and unequivo­
cally disclosed the reasoning followed. 14 
38. O n the fifth plea in law — alleging misuse 
of powers by the Agency and the Commis­
sion which, according to the appellant, had 
no discretion, but were under an obligation 
to conclude the contract submitted by the 
appellant — the Court found that the appel­
lant had adduced no evidence at all that the 
Agency and the Commission had pursued an 
aim other than that of implementing the 
supply policy.1 5 
39. Consequently the Court dismissed the 
application in Case T-149/94. 
Case T-181/94 
The action for annulment 
40. Before the Court of First Instance the 
appellant adduced five pleas in law for the 
13 — Paragraphs 42 and 43. 
14 — Paragraphs 48 to 50. 
15 — Paragraphs 53 and 54. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
annulment of Commission Decision 94/285, 
alleging infringement of Article 5 bis of the 
Rules and of the provisions on supplies in 
Chapter 6 of the Treaty, breach of the general 
principles of Community law, breach of the 
rules on the division of powers, breach of the 
obligation to state reasons, and misuse of 
powers. 
41. The first plea in law consisted of four 
limbs. 
42. The first and second limbs alleged respect­
ively breach of the Agency's obligation to 
conclude the contract in accordance with 
Article 5 bis of the Rules and infringement — 
arising from the supply policy as defined and 
applied in the present case — of the first 
paragraph of Article 61, Article 60, the first 
paragraph of Article 65, and Articles 52(2) 
and 64 of the Treaty. Therefore the issue raised 
by the appellant was whether the operation 
of supply and demand could be set aside 
where the Agency exercised its exclusive right 
to conclude contracts for the supply of 
uranium. 
43. The Court of First Instance examined the 
supply system established by Chapter 6 of 
the Treaty in the light of the aims of the 
Community and concluded that it was clear 
from the structure of the Treaty that the task 
of the Agency was to guarantee one of the 
essential aims assigned to the Community by 
Article 2(d) of the Treaty, namely reliability 
of supply, in accordance with the principle of 
equal access to sources of supply laid down 
in Article 52(1) of the Treaty. The Court con­
sidered that this was clear from Article 
52(2)(b), which established that specialised 
body expressly for that purpose and con­
ferred on it, in principle, exclusive rights in 
order to ensure that Community users received 
regular and equitable supplies of nuclear mate­
rials from the Community and from non-
member countries. 16 
44. The Court found that, even within the 
framework of the simplified procedure, the 
Agency had a right to object to a contract 
which might prejudice the achievement of the 
objectives of the Treaty. 17 
45. Although the principle of balancing 
supply against demand must generally be 
observed when the Agency exercises its exclu­
sive right to conclude supply contracts, the 
Court nevertheless considered that the Treaty 
provides for one. specific exception because 
the Agency has an obligation to meet all 
orders 'unless prevented from doing so by 
legal or material obstacles'. 18 
46. The Court added that, where decisions 
concerning economic and commercial policy 
16 — Paragraph 85. 
17 — Paragraph 86. 
18 — Paragraph 88. 
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OPINION OF MR LÉGER — CASE C-161/97 Ρ 
and nuclear policy are involved, the Agency 
has a broad discretion when exercising its 
powers, so that review by the Court must in 
any event be confined to identifying any 
manifest error of assessment or misuse of 
powers. 1 9 
47. The Court considered that the Agency 
could lawfully bar imports of nuclear mate­
rials if those imports were liable to jeopardise 
the achievement of the aims of the Treaty, in 
particular by their effect on sources of supply. 
According to the Court, such a risk could be 
regarded as a legal obstacle, within the meaning 
of the first paragraph of Article 61 of the 
Treaty, to meeting an order. 2 0 
48. As the possibility could not be ruled out 
that, when the Commission adopted Decision 
94/285, a regular and equitable supply in 
accordance with Article 2(d) of the Treaty 
could be jeopardised, the Court took the view 
that a first legal obstacle actually existed. 2 1 
49. With regard to the second obstacle, the 
Commission had submitted that the supply 
system established by the Treaty aimed at 
ensuring that the importation of nuclear mate­
rials into the Community was effected at 
market-related prices. According to the Com­
mission, this principle had been recognised 
by Article 14 of the Trade Agreement as 
applicable in relations between the Commu­
nity and the Soviet Union, or subsequently 
the CIS States. 
50. The Court found that Article 14 of the 
Trade Agreement formed part of Community 
law and pointed out that, by virtue of Article 
64 of the Treaty, the Agency had to act, where 
appropriate, within the framework of agree­
ments between the Community and a third 
State. 
51. After examining the available data on 
prices to determine whether Article 14 of the 
Trade Agreement had been applied correctly 
by the Agency and the Commission, the 
Court found that the contract did not comply 
with the rule that supplies must take place at 
market-related prices because the contract had 
been concluded at a price which was even 
lower than the average spot market price. 2 2 
52. Therefore a second legal obstacle within 
the meaning of the first paragraph of Article 
61 of the Treaty was found to have been 
proven. 
19 — Paragraph 90. 
20 — Paragraph 92. 
21 — Paragraphs 94 and 95. 22 — Paragraph 100. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
53. With regard to the third obstacle to con­
cluding the contract, allegedly deriving from 
the obligation to ensure equal access to sources 
of supply and to prevent one user from being 
given a privileged position in relation to com­
petitors, the Court considered that, if imports 
were to be limited, the application of a per­
missible threshold of dependence — fixed, by 
reference to the state of the market, at a 
maximum percentage of individual users' con­
sumption — was justified in order to guar­
antee equal access to sources of supply in 
accordance with Article 52(1) of the Treaty. 2 3 
54. Finding that the appellant had already 
purchased uranium from the CIS in quanti­
ties exceeding the limit fixed by the Agency 
within its broad discretion, the Court took 
the view that the Commission was justified in 
finding that there was a legal obstacle within 
the meaning of the first paragraph of Article 
61 of the Treaty. 2 4 
55. The Court considered that the Agency 
did not commit an error of law or a manifest 
error of assessment by refusing to conclude 
unconditionally the supply contract in ques­
tion and by adding to the contract a condi­
tion that the uranium was not to come from 
the CIS. 2 5 
56. Consequently the Court dismissed the 
first and second limbs of the first plea as 
unfounded. 
57. By the third limb of the first plea, alleging 
infringement of the aims of Article 1 of the 
Treaty, the appellant claimed that the Com­
mission and the Agency had been guided only 
by the interests of producers and had not 
taken the interests of users into account. The 
appellants also considered that the Agency's 
policy gave only feeble protection to pro­
ducers within the Community, who cover 
only 20% of the Community's uranium 
requirements, and benefits producers in cer­
tain non-member countries. 
58. The Court of First Instance dismissed this 
complaint on the grounds that the Agency 
was seeking to ensure reliability of supply 
and to guarantee continuity of supplies to 
Community users and that it was in the 
interest of the Community nuclear industry 
that a particular source of supply should not 
become too large in relation to alternative 
sources. The Court added that it was likewise 
in the interest of the Community as a whole 
and consistent with the aim of developing 
trade with other countries that imports should 
take place at market-related prices, as shown 
in particular by Article 14 of the Trade Agree­
ment. Therefore, according to the Court, 
Decision 94/285 met the requirements of the 
supply policy and did not conflict with the 
task of the Community. 2 6 
23 — Paragraph 102. 
24 — Paragraphs 104 and 105. 
25 — Paragraph 107. 26 —Paragraph 113. 
I - 2075 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
59. The fourth limb of the first plea alleged 
breach of the rules of the common market in 
natural uranium, particularly Articles 2(g) and 
92 et seq. of the Treaty, which guarantee 
traders the freedom to obtain supplies from a 
supplier of their choice established in another 
Member State. 
60. The Court dismissed this complaint. It 
took the view that the freedom of an under­
taking to obtain supplies from a supplier of 
its choice established in another Member State 
had to be exercised within the limits laid 
down by the Treaty, in particular in such a 
way as to ensure that the reliability of supply 
was not jeopardised. In the present case, 
according to the Court, the appellant's con­
tract came up against certain legal obstacles 
which, under the first paragraph of Article 61 
of the Treaty, restrict that freedom. 2 7 
61. In support of its second plea, the appel­
lant argued that the principle of legal cer­
tainty had been infringed in so far as the 
Agency's conduct lacked transparency: that 
the principle of equal t rea tment h a d been 
infringed in so far as the Agency had not 
taken account of the small role played by 
nuclear energy in electricity production in 
Germany; and, finally, that the principle of 
proportionality had been infringed in so far 
as the aim of diversification could have been 
achieved equally well on the basis of the 
second paragraph of Article 65 of the Treaty, 
or Articles 70 and 72, which relate to support 
for prospecting programmes and to the 
building-up of commercial and emergency 
stocks. 
52. The Court found that the complaint con-
:erning infringement of the principle of legal 
:ertainty had to be dismissed on the ground 
that, as there were easily accessible sources of 
information which a reasonably diligent trader 
in this very particular and clearly identified 
sector must be presumed to know, it could 
not be said that there was a lack of trans­
parency. 2 8 
53. Regarding the principle of equal treat­
ment, the Court observed that the Agency 
applied a threshold of permissible dependence 
in order to ensure equal access to sources of 
supply for undertakings established in the 
Community and that such an approach was 
¡ustified on the basis of Article 52(1) of the 
Treaty. The Court added that the Agency and 
the Commission could not be required to take 
account of particular circumstances in dif­
ferent Member States. The Court also con­
sidered that the appellant had not shown that 
there were cases in which the Agency and the 
Commission had failed to object to an 
infringement of Article 5 bis of the Rules. 29 
64. With regard to the complaint concerning 
infringement of the principle of proportion­
ality, the Court stated that it must be dis­
missed because the Agency, in view of the 
aims of its supply policy, had to block imports 
from the CIS at non-market-related prices. 
The Court added that the condition for 
approval of the contract, namely that the 
materials were not to come from the CIS, 
could not be disproportionate for the reasons 
27 — Paragraph 117. 
28 — Paragraph 127. 
29 — Paragraph 132. 
I - 2076 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
it had already given, relating to the risks 
which this would pose to the diversity of 
sources of supply. 3 0 
65. By the third plea, alleging breach of the 
rules on the division of powers, the appellant 
contended that neither the Agency nor the 
Advisory Committee was a Community insti­
tution within the meaning of Article 3(1) of 
the Treaty; that the common supply policy 
was a matter for the Community's political 
institutions, namely the Commission and the 
Council; and that the Agency was only respon­
sible for the commercial aspect of supply, and 
had no power to fix import quotas. 
66. The Court of First Instance dismissed this 
plea on the grounds that the Agency followed 
the path outlined by the Council and Com­
mission and acted within the bounds of its 
broad discretion to take decisions in the field 
of economic and commercial policy, as well 
as nuclear policy. The Court added that the 
Commission, in exercising its power of review 
of the act of the Agency referred to it by the 
appellant under the second paragraph of 
Article 53 of the Treaty, had adopted the 
Agency's assessment as its own. 3 1 
67. By the fourth plea, the appellant alleged 
a breach of the obligation to state reasons in 
that Decision 94/285 did not reveal the struc­
tural relationship between the Agency's 
powers and the Treaty. In its decision the 
Commission did not show the reasons why 
the appellant would become dependent on 
uranium from the CIS and in what respect 
the purchase price agreed in the supply con­
tract did not reflect market-economy condi­
tions or was not related to market prices. 
68. The Court of First Instance found that 
the reasoning of Decision 94/285 showed 
clearly and unequivocally the principal rea­
sons for the refusal to conclude the contract 
submitted by the appellant.3 2 
69. The appellant raised a fifth plea, alleging 
misuse of powers on the ground that the 
Agency and the Commission had no discre­
tion but were under an obligation to con­
clude the contract. 
70. The Court found that the appellant had 
not shown that the Agency and the Commis­
sion had pursued an aim other than that of 
implementing the Euratom supply policy. 3 3 
30 — Paragraph 135. 
31 — Paragraph 140. 
32 — Paragraph 146. 
33 — Paragraph 150. 
I - 2077 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
71. The Court therefore dismissed the action 
for annulment in its entirety. 
The action for damages 
72. As the Court found that the alleged con­
duct of the Agency and the Commission's 
refusal to accede to the appellant's requests 
were not vitiated by any irregularity, it dis­
missed the claim for damages as unfounded. 3 4 
IV — The appeal 
73. In its appeal, the appellant claims that the 
Court should: 
' 1 . set aside the judgment given by the Court 
of First Instance on 25 February in Cases 
T-149/94 and T-l81/94; 
2. annul the decision of 4 February 1994 
of the Commission of the European 
Communities; 3 5 
3. annul the decision of 21 February 1994 
of the Commission of the European 
Communities; 3 6 
4. order the European Atomic Energy 
Community to pay the appellant dam­
ages of DM 3 511 279.30, with interest at 
6% per annum from 7 April 1994; 
5. order the Commission of the European 
Communities to pay the costs, including 
those incurred in the preliminary proce­
dure and the proceedings before the 
Court of First Instance, in so far as they 
are not taken into account in the claim 
for damages in point 4.' 
34 — Paragraphs 155 and 156. 
35 — C(94) 243 final. 
36 — C(94) 344 final. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
74. The Commission contends that the Court 
should: 
' 1 . dismiss the appeal; 
2. order the appellant to pay the costs.' 
75. In its reply, the appellant asks the Court 
to order production of the Council's negoti­
ating directives to the Commission and other 
documents concerning the negotiations with 
the Russian Federation on the partnership and 
cooperation agreement. 
76. According to the appellant, these docu­
ments confirm that the opinion that the CIS 
as a whole should be regarded as a single 
source of supply is contrary to the Commis­
sion's practice. 
77. The appellant adds that otherwise the 
Court should 'include in the file the proce­
dural documents of the Agency and the defen­
dant concerning the present proceedings'. 
V — Examination of the pleas in support of 
the appeal 
78. The Commission considers that the appeal 
is clearly inadmissible and asks the Court to 
dismiss it pursuant to Article 119 of the Rules 
of Procedure on the grounds that it merely 
reproduces the application at first instance 
and does not contain pleas in law which are 
specific and identifiable. Therefore the appeal 
is not in conformity with Article 52 of the 
EAEC Statute of the Court of Justice and 
Article 112(l)(c) of the Rules of Procedure of 
the Court. 
79. The appellant maintains that, on the con­
trary, the conditions of Article 51 of the EC 
Statute of the Court of Justice 3 7 and Article 
112(l)(c) of its Rules of Procedure are ful­
filled since the appeal is based on pleas alleging 
irregularities in the proceedings before the 
Court of First Instance which jeopardise the 
appellant's interests, and on several breaches 
of Community law by that Court. 
80. In the present case, the appellant submits 
that it is not merely requesting a re­
examination; nor is it reproducing its pre­
vious pleas word for word. It states that the 
appeal follows faithfully, even with respect to 
37 — No doubt this should read 'Article 52 of the EAEC Statute'. 
I - 2079 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
headings and terminology, the judgment of 
the Court of First Instance, which as a whole 
infringes Community law. 
Preliminary observations 
81. The appellant's approach raises a serious 
question concerning the application of Article 
119 of the Rules of Procedure. It is clear that 
the structure used by the appellant in setting 
out the appeal is modelled on that of the 
judgment of the Court of First Instance, which 
repeats each of the pleas put forward at first 
instance by the appellant itself. 
82. However, Article 112(l)(c) of the Rules 
of Procedure states that an appeal must con­
tain the pleas in law and legal arguments relied 
on. The Court of Justice has consistently held 
that it follows from this that an appeal must 
indicate precisely the contested elements of 
the judgment which the appellant seeks to 
have set aside, and also the legal arguments 
specifically advanced in support of the 
appeal. 3 8 
83. The Court added that this requirement is 
not satisfied by an appeal which merely repeats 
or reproduces word for word the pleas in law 
and arguments previously submitted to the 
Court of First Instance, including those based 
on facts expressly rejected by that court; in so 
far as such an appeal does not contain any 
arguments specifically contesting the judg­
ment appealed against, it amounts in reality 
to no more than a request for re-examination 
of the application submitted to the Court of 
First Instance which, under Article 49 of the 
EC Statute of the Court of Justice, 3 9 the latter 
does not have jurisdiction to undertake. 4 0 
84. It should be observed that, contrary to 
what may appear from the first part of the 
Court's usual reasoning justifying the dis­
missal of pleas and arguments repeating those 
submitted at first instance, it is not sufficient 
to reword them in order to escape the objec­
tion of inadmissibility. As the second part of 
the reasoning clearly indicates, in order for 
the admissibility of a plea or argument to be ' 
sufficiently affected, it is enough if the issues 
already determined by the Court of First 
Instance, regardless of whether they are framed 
in identical terms, 4 1 are presented once again 
in order to obtain the judgment of the Court 
of Justice under the same conditions and in 
38 — See the judgment in Case C-7/95 Ρ Deere ν Commission 
[1998] ECR I-3111, paragraphs 18 and 19. 
39 — This case-law may be applied to Article 50 of the Statute 
known as the Statute of the Court of Justice of the Euro­
pean Atomic Energy Community, as the two provisions, 
and therefore the conditions which they set out for the 
admissibility of the appeals, are entirely identical. 
40 — See the judgment in Deere ν Commission, cited above, 
paragraph 20. 
41 — In the judgment in Case C-355/95 Ρ TWD ν Commission 
[1997] ECR I-2549, paragraph 33, the Court of Justice dis­
missed as inadmissible a plea whereby an appellant merely 
repeated arguments already put by it to the Court of First 
Instance and which the latter had rejected, but the Court of 
Justice did not state that inadmissibility was subject to the 
condition that the arguments which were put forward a 
second time, but before the Court of Justice, had to repro­
duce word for word those submitted to the Court of First 
Instance. 
I - 2080 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
exercise of the same jurisdiction as the Court 
of First Instance. 
85. Accordingly, the systematic repetition at 
the appeal stage of pleas raised before the 
Court of First Instance is likely to raise serious 
doubts as to the true purpose of the appel­
lant, who rather appears to be seeking a 
re-examination of the application. 
86. However, detailed analysis of the appeal 
and the reply shows that the appellant's obser­
vations call into question the factual findings 
of the Court of First Instance and its assess­
ment of those facts and of the evidence sup­
porting such assessment, while at the same 
time raising genuine questions of law for 
which the Court of Justice has jurisdiction 
and which may therefore appear justified in 
certain respects. In these circumstances the 
reference to Article 119 does not seem 
appropriate. 
87. In fact, this was the approach favoured 
by the Court, which chose to continue the 
proceedings. 
88. As I have said, the appellant has not for­
mally set out, as is the custom, each of the 
pleas raised against the judgment of the Court 
of First Instance. The appellant has presented 
them directly by placing them under the head­
ings of the pleas which it raised at first instance 
and which are repeated as guidelines in its 
written observations to the Court of Justice. 
89. This approach has somewhat affected the 
present opinion in so far as I have chosen to 
adopt in broad outline the proposed plan, so 
as not to call into question the logic behind 
the appellant's reasoning and so as to reply 
fully to its submissions. 
A — Case T-149/94 
1. The plea alleging misuse of the powers of 
the Agency as set out in Article 5 bis (f) of 
the Rules 
90. The appellant contends in essence that, 
contrary to the finding of the Court of First 
Instance, Article 5 bis (f) does not empower 
the Agency to ask for supplementary infor­
mation or to extend the ten-day period pre­
scribed by that provision, which uncondition­
ally requires the Agency to conclude or refuse 
to conclude the contract within that period. 
I - 2081 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
91. This argument raises the issue of the exact 
scope of the Agency's powers when, having 
received a supply contract for the purpose of 
concluding it, it is not aware of the source of 
the supplies in question. 
92. The text of Article 5 bis (f) envisages only 
one alternative because the Agency has the 
choice, within the legal period, of concluding 
or refusing to conclude the contract. 
93. However, the Agency's powers must be 
determined in the light both of its own tasks 
and the objectives pursued by the Treaty and 
by the relevant secondary legislation. 
94. The Treaty provides that the Community 
must 'ensure that all users in the Community 
receive a regular and equitable supply of ores 
and nuclear fuels'. 4 2 However, the regularity 
of supplies of nuclear fuels to the Commu­
nity is closely linked to the diversity of sources 
of supply. The reason is that no authority can 
run the risk of maintaining commercial rela­
tions with a single supplier or a limited number 
of producers of products which are as neces­
sary as energy-generating materials for the 
economy of a country and for the standard of 
living of its citizens. The lack of alternative 
direct sources of supply would expose the 
country to the serious consequences of sudden 
default on the part of one of its suppliers, 
particularly since given the limited number of 
suppliers, this would affect a substantial pro­
portion of its supplies. 4 3 Therefore diversity 
of supply is a condition of a regular supply 
and of the resulting reliability for the 
Community. 
95. Furthermore, the same reasons led the 
Council to state expressly, in the Resolution 
of 16 September 1986, cited above, that the 
energy policy of the Community and the 
Member States must endeavour to ensure 
more secure conditions of supply and reduced 
risks of sudden fluctuations in energy prices 
through geographical diversification of the 
Community's external sources of supply. 4 4 
96. It follows that it is really important for 
the Agency to know the geographical origin 
of supplies. This is itself necessary if the 
requirement of diversification of supplies is 
to be effective because it enables sources of 
42 — Article 2(d). 
43 — These supplies must therefore be "reliable, that is to say, 
consistent from the viewpoint of prices and quantities and 
must meet users' requirements so far as possible, in order 
not to compromise the implementation of nuclear pro­
grammes "'. A. Bette, 'Enseignements de sept années 
d'application du régime d'approvisionnement institué par le 
Traité de l'Euratom', Annuaire français de droit interna­
tional, 1965, p. 713, cited in O. Pirotte, Trente ans d'expérience 
Euratom, La naissance d'une Europe nucléaire, 1988, p. 59. 
44 — Paragraph 5(a), second indent. 
I - 2082 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
supply to be ascertained not only in order to 
ensure a variety of sources, but also to assess 
the risks of a breakdown in supply caused by 
the political or economic situation of a par­
ticular State or group of supplier States. The 
need for exact information on sources of 
supply must therefore, it seems to me, influ­
ence the interpretation to be given to the pro­
visions laying down the Agency's powers. 
97. The provisions of the Treaty bear witness 
to this importance. Article 60, which applies 
to users of source materials from within and 
outside the Community, provides that they 
must inform the Agency periodically of the 
place of origin of supplies. 
98. Furthermore, the Agency, which has the 
exclusive right to conclude agreements or 
contracts relating to supplies, 4 5 also has the 
power to lay down the terms on which it can 
meet all orders placed by users, 4 6 which obvi­
ously covers the conditions relating to source. 
99. This power is confirmed by the second 
paragraph of Article 65 of the Treaty, which 
allows the Agency to choose the geographical 
origin of supplies, provided that conditions 
which are at least as favourable as those speci­
fied in the order are thereby secured for the 
user. 
100. I should add that, under Article 64, the 
Agency is to exercise its exclusive right 'act­
ing where appropriate within the framework 
of agreements concluded between the Com­
munity and a third State or an international 
organisation'. In other words, if the Commu­
nity is bound by international agreements 
which may affect its supply of nuclear source 
materials, the Agency must comply with those 
agreements, which means that it cannot con­
clude a supply contract without having been 
informed beforehand of the source of the 
supplies referred to in the contract. This means 
that, without that information, it cannot ascer­
tain whether the contractual relationship is 
covered by the rules for the agreement in 
question and cannot ensure that they are cor­
rectly applied. 
101. As we have seen, the Treaty leaves no 
doubt as to the importance attached to the 
geographical origin of supplies and the Agen­
cy's right to require full information on this 
point. 
102. In these circumstances it is difficult to 
agree that Article 5 bis (f) of the Rules requires 
the Agency to reach a decision on the conclu­
sion of the contract within the prescribed 
period in all cases where it is not aware of the 
geographical origin of the source materials. 
45 — Articles 52(2)(b) and 64 of the Treaty. 
46 — Ibid., fourth paragraph of Article 60. 
I - 2083 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
103. If so interpreted, Article 5 bis (f) would 
lead the Agency, in the absence of particulars 
of the origin, to refuse to conclude a contract 
out of caution, simply in order to ensure the 
reliability of the Community's supply. 
104. For the reasons just given, I can only 
endorse the reasoning of the Court of First 
Instance when it observes that 'the geograph­
ical origin of the materials to be supplied is 
thus one of the principal elements of a supply 
contract which have to be communicated to 
the Agency under Article 5 bis (f) of the 
Rules', because it is essential for the Agency 
to know the geographical origin 'in order to 
ensure reliability of supply — the aim of the 
supply policy pursued ...'. 4 7 
105. To my mind, taking account of this 
imperative and in the light of the wording of 
Article 5 bis (f) of the Rules, the Court of 
First Instance was not mistaken in law when 
it observed that the Agency was entitled to 
request the parties to provide the missing 
documentation by communicating to it the 
origin of the materials to be supplied. 4 8 The 
reason is that, although Article 5 bis (f) requires 
the Agency to act within the legal period of 
ten working days, it does not prevent the 
Agency from making inquiries such as that in 
question, provided that, as the Court of First 
Instance expressly indicated, the request is 
made within that period. 4 9 
106. In view of the importance of the Agen­
cy's role in relation to external supplies, it is 
not unreasonable to assume that it has power 
to make inquiries in so far as such power is 
justified by the aim of carrying out its task of 
supervision more effectively, while giving the 
contracting parties a last chance to complete 
the details of their contract with a view to 
concluding it. 
107. However, a difficulty appears to arise 
where, as in this case, the information 
requested is given within the time-limit, but 
the Agency gives its decision after the dead­
line. 
108. O n this point the appellant complains 
that the Court of First Instance accepted the 
exceeding of the time-limit even though, under 
Article 5 bis (c), point 5, of the Rules, where 
the supplier is unable, at the time of entering 
into the contract, to state the country of origin 
of the material to be supplied, he may do so 
subsequently in writing. 
109. The appellant adds, in essence, that the 
Court refused it the right to provide the 
information subsequently on the ground that 
the appellant and its supplier did not disclose 
that the uranium was to come from the CIS, 
notwithstanding the fact that the term 'coun­
try of origin' in Article 5 bis (c), point 5, does 
not cover a group of states such as the CIS. 
47 — Paragraph 35. 
48 — Paragraph 39. 
49 — In paragraph 39 the Court stated that the Agency was 
entitled to make the request 'before the period provided for 
in Article 5 bis (f) of the Rules expired'. 
I - 2084 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
110. It should be recalled that the Court of 
First Instance stated that it was clear from the 
actual wording of Article 5 bis (c), point 5, 
that later communication of the country of 
origin is permissible only if the supplier was 
unable to provide that information at the time 
of entering into the contract. 5 0 It then con­
cluded that this was not the case because the 
appellant and its supplier had agreed, at least 
implicitly, that the materials would come from 
the CIS. 
111. As the Court of First Instance found, 
the words 'is unable' in Article 5 bis (c), point 
5, justify that interpretation, which I consider 
necessary in order to prevent fraudulent prac­
tices whereby one of the contracting parties 
would defer informing the Agency of the 
origin of the source materials, so as to obtain 
the conclusion by the Agency of the pro­
posed contract, contrary to the requirement 
for the diversification of supplies. 
112. The documents before the Court show 
that, although the reply from BNFL made it 
clear that the source was the CIS, its identi­
fication of the actual country of origin 
remained hypothetical. However, the fact 
remains that, since it is important for the 
Agency to know the source of the uranium, 
any imprecise information or, with regard to 
the country of origin, uncertain information 
concerning the source would have to be passed 
on, such as it was, by the contracting parties. 
The Court was therefore entitled to find that 
the geographical origin, although known to 
the parties, was not mentioned, even if it 
intended thereby to refer to the CIS, so that 
the judgment must be upheld on this point. 
113. I should add that the pleas raised by the 
appellant in order to challenge the grounds of 
the judgment — where it is stated that the 
parties were aware of the origin of the source 
materials when the Agency was informed of 
the contract — do not fall within the jurisdic­
tion of the Court of Justice and must be ruled 
inadmissible, in accordance with settled case-
law. 
114. The Court has ruled that it is clear from 
Article 168a of the EC Treaty and the corres­
ponding provisions of the ECSC and EAEC 
Treaties that an appeal is to be limited to 
points of law. This limitation is set out in the 
first paragraph of Article 51 of the EC Statute 
and the corresponding provisions of the ECSC 
and EAEC Statutes of the Court of Justice, 
which specify the grounds on which an appeal 
may be based (lack of competence of the 
Court of First Instance, a breach of proce­
dure before it which adversely affects the 
interests of the appellant, and the infringe­
ment of Community law by the Court of 
First Instance). 
115. It follows from the abovementioned pro­
visions that an appeal may be based only on 
grounds relating to the infringement of rules 
of law, to the exclusion of any appraisal of 50 — Paragraph 36. 
I - 2085 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
the facts. The Court of First Instance has 
exclusive jurisdiction, firstly, to establish the 
facts except where the substantive inaccuracy 
of its findings is apparent from the documents 
submitted to it and, second, to assess those 
facts. When the Court of First Instance has 
established or assessed the facts, the Court of 
Justice has jurisdiction under Article 168a of 
the EC Treaty and the corresponding provi­
sions of the ECSC and EAEC Treaties to 
review the legal characterisation of those facts 
at first instance and the legal conclusions it 
has drawn from them. 
116. The Court of Justice has thus no juris­
diction to establish the facts or, in principle, 
to examine the evidence which the Court of 
First Instance accepted in support of those 
facts. Provided that the evidence has been 
properly obtained and the general principles 
of law and the rules of procedure in relation 
to the burden of proof and the taking of evi­
dence have been observed, it is for the Court 
of First Instance alone to assess the value 
which should be attached to it. Therefore such 
appraisal does not constitute, save where the 
evidence has been fundamentally miscon­
strued, a point of law which is subject, as 
such, to review by the Court of Justice. 5 1 
117. In paragraph 37 of the judgment the 
Court of First Instance sets out the evidence 
which leads it to conclude that the parties to 
the contract had previously determined the 
place of origin of the uranium and were 
therefore in a position to state this in the con­
tract itself. 
118. In doing so, the Court made an assess­
ment of the evidence before it which is not 
open to review. 
119. Finally, although the appellant protests 
its ignorance of the origin of the supplies, it 
does not claim that the evidence relied upon 
by the Court of First Instance was distorted 
in any way whatever. 
120. However, it is necessary to establish 
what the Agency was required to do on the 
expiry of the time-limit, knowing that the 
contracting parties were not allowed to inform 
it of the origin of the goods after the contract 
was concluded and that it could nevertheless 
obtain the information by requesting it within 
the legal time-limit. 
121. In other words, was the Agency entitled 
to an additional period in which to decide on 
the request to conclude the contract, after 
receiving the information required? 
51 — Sec the judgment in Case C-136/92 Ρ Commission ν Braz-
zelli Lualdi [1994] ECR 1-1981, paragraphs 47 to 49 and 66; 
the order of 17 September 1996 in Case C-19/95 Ρ San 
Marco ν Commission [1996] ECR I-4435, paragraphs 36 to 
40, and the judgment in Deere ν Commission, cited above, 
paragraphs 18 to 22. 
I - 2086 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
122. If it is found that the ten-day period 
must be observed, come what may, this would 
amount to allowing the supplier not to inform 
the Agency of the origin of the uranium, albeit 
at the risk of an outright refusal to conclude 
the contract if the Agency took the view that 
it could not make a decision without knowing 
the origin of the source materials. In the same 
way, strict observance of the time-limit may 
lead to the Agency to make a decision before 
obtaining details of the origin, even though 
they could be provided at the very last 
moment. Here again, the Agency would be 
tempted, as a precaution, to refuse to con­
clude the contract, which appears unreason­
able where the origin of the materials does 
not justify that position. 
123. Alternatively, it could be assumed that 
time cannot start to run until the Agency has 
all the information necessary to exercise its 
exclusive right to conclude contracts. 
124. This interpretation, which also informs 
the reasoning of the Court of First Instance, 
seems to me more consistent with the general 
scheme set up by the Treaty for implementing 
the supply policy, in so far as the requirement 
that the Agency make a rapid decision is made 
subject to the condition that it be provided 
with a contract containing all the information 
necessary to perform its task of checking the 
sources of supply. Consequently, provision 
must be made for time to start running on the 
date of receipt of the complete documen­
tation. 
125. In the light of that interpretation, I 
believe that the Court of First Instance was 
justified in finding that the ten-day period 
began to run on 14 December 1993, the date 
when the Agency received the information it 
had requested. 5 2 Contrary to the appellant's 
argument, the length of the period in ques­
tion cannot be regarded as disproportionate, 
as the time which had already elapsed cannot 
be taken into account because the documen­
tation was not complete. 
126. The appellant denies that it was itself the 
cause of the Agency's administrative difficul­
ties in coming to a decision. It also claims 
that there is no foundation for the statement 
by the Court of First Instance that the accel­
erated procedure of Article 5 bis (f) of the 
Rules applies only to cases which present no 
problems. 
127. I propose that the Court of Justice find 
these submissions inadmissible in so far as 
they are directed against grounds of the judg­
ment which are given merely for the sake of 
completeness. 
128. Challenging those grounds cannot alter 
the outcome of the judgment. 
52 — Paragraph 40. 
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OPINION OF MR LÉGER — CASE C-161/97 Ρ 
129. It follows that the plea in question must 
be rejected. 
2. The plea alleging an infringement of the 
time-limit laid down by Article 5 bis (f) of 
the Rules 
130. The appellant argues that, in any case, 
the legal time-limit was exceeded when the 
Agency took Decision 1/94 on 6 January 
1994, and also disputes the method of calcu­
lating the time-limit which, it maintains, 
expired on 28 December 1993. It adds that, 
even assuming that the period expired on 6 
January, the Agency's decision dated the same 
day is irregular because it was sent by regis­
tered letter on 7 January. 
131. Under Article 5 bis (f) of the Rules, the 
Agency must act within ten working days of 
the date of receipt of the contract. 
132. It is common ground that 'working days' 
do not include Saturdays, Sundays and public 
holidays, which therefore do not count in the 
computation of the time-limit. 
133. The number and dates of public holi­
days vary from one Member State to another 
and, to establish which apply, it is necessary 
to ascertain the relevant law which, in this 
particular case, is governed by the staff regu­
lations of the persons employed by the Agency. 
134. As those persons are subject to the same 
regulations as Commission staff, the public 
holidays to which they are entitled are those 
fixed by annual communication published in 
the Official Journal of the European Commu­
nities. 
135. It follows from the foregoing and from 
the Commission communication on public 
holidays for 1993 5 3 that the period from 
Thursday 23 December to Friday 31 
December 1993 was a public holiday, which 
means that seven days must be deducted from 
the number of days between 15 December 
1993, the day following the Agency's receipt 
of the information requested, and 6 January 
1994, the date of notification of Decision 1/94. 
136. Furthermore, the weekends, totalling six 
days, 5 4 falling in the period in question are 
not taken into account when calculating the 
time-limit. 
53 — Communication 93/C 2/07 (OJ 1993 C 2, p. 8). 
54 — Saturday 18 and Sunday 19 December 1993, Saturday 25 and 
Sunday 26 December 1993 and Saturday 1 and Sunday 2 
January 1994. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
137. Consequently the total number of days 
accounted for by weekends and public holi­
days is 13, which must be deducted from the 
23 days of the period in question. 
138. In other words, the 10th and last day of 
the legal period was Thursday 6 January 1994, 
which no one denies is the date of Decision 
1/94. 
139. It is clear from the actual wording of 
Article 5 bis (f) of the Rules that the Agency 
must act within the 10-day period, and that 
is what it did. 
140. Therefore the Court of First Instance 
was not mistaken in law when it stated that 
'such a lapse of time [within which the Agency 
took its decision] was reasonable and did not 
infringe Article 5 bis (f) of the Rules'. 5 5 
3. The plea alleging infringement of the rules 
on the division of powers 
141. The appellant considers that the Agen­
cy's power to conclude supply contracts is 
not discretionary and does not authorise it to 
extend the legal period within which it must 
act and, on this plea, the appellant refers to its 
application before the Court of First Instance. 
The Commission contends that this plea is 
inadmissible because it merely repeats the 
terms of the application, but the appellant 
replies that it alleges an infringement of the 
rules of procedure, particularly the right to be 
heard, which was disregarded by the Court 
of First Instance, which is said not to have 
taken account of part of the appellant's account 
of the facts before that Court. The appellant 
maintains that the judges concerned did not 
have personal knowledge of the whole of the 
file because the presentation thereof in the 
report for the hearing was incomplete. 
142. The appellant adds that, even if the Court 
of First Instance were justified in finding that 
the appellant had made no submissions con­
cerning infringement of the rules on the divi­
sion of powers, the Court ought of its own 
motion to have considered whether the Agen­
cy's actions complied with those rules. 
143. This plea must be declared inadmissible. 
144. In paragraphs 42 and 43 of the judgment 
the Court of First Instance found that the 
appellant had not pursued its third plea in 
law — alleging breach of the rules on the 
division of powers — and concluded that 
there was no need to rule on whether the plea 
was well-founded. 55 — Paragraph 40. 
I - 2089 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
145. The appellant refers initially to certain 
pages of its application to the Court of First 
Instance. Although it goes on to specify the 
plea in question when it says that the Court 
did not examine part of the report on the 
facts, it does not give the reasons why it con­
siders that the Court failed to take account of 
some of the facts necessary for giving judg­
ment. To be admissible, such a plea must 
describe the facts allegedly disregarded and 
compare them with the actual reasoning in 
order to demonstrate the inadequacy of the 
judgment. It must be said that such evidence 
has not been adduced. 
146. In addition, the Court of First Instance 
is not required to give an express ruling on 
each of the circumstances relied upon by a 
party to support its claim if the Court's deci­
sion is well-founded in law and justified on 
clear, unambiguous grounds. 
147. As I have already said, 5 6 the Court of 
First Instance correctly interpreted the rel­
evant provision when it stated its finding on 
the application of the legal time-limit by the 
Agency. It also considered that the period in 
question was reasonable and, in particular, 
did not breach the principle of legal cer­
tainty. 5 7 There is nothing in the stated rea­
soning to suggest that the Court reached its 
decision without the judges having taken 
account of all the facts, pleas and submissions 
put forward by the parties. 
148. The argument that the judges at first 
instance had no personal knowledge of all the 
facts of the case must be rejected. It is not 
disputed that, as required by Article 33(2) of 
the Rules of Procedure of the Court of First 
Instance, only those judges who were present 
at the oral proceedings may take part in the 
deliberations." The purpose of the oral pro­
ceedings is to enable the parties to state their 
case rapidly, but directly and completely, 
before the Court, which ensures that the 
members are informed directly of the pleas 
and arguments relied upon. 
149. Above all, it is likewise common ground 
that the Court of First Instance had access, 
throughout the proceedings and, in particular, 
during the deliberations, to all the pleadings 
and documents in the file. 
150. Therefore the criticism of the report for 
the hearing, which is only one of the docu­
ments available in the file, cannot be accepted. 
Although the appellant observes that it sub­
mitted observations on the report by letter of 
13 September 1996 to request that it be recti­
fied and to state certain objections concerning 
'turns of phrase which may be misleading and 
certain assessments [which will be mentioned 
below], so necessary to the oral proceedings', 
these observations do not refer to shortcom­
ings arising from the alleged incompleteness 
of the report on which, furthermore, the 
appellant would not have been able to com­
ment in the course of the hearing before the 
Court of First Instance. 
56 — See paragraph 124 et seq. of this opinion. 
57 — Paragraph 40 of the judgment. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
151. Finally, it must be observed that, when 
the Court of First Instance finds, as here, that 
an applicant has not pursued one of the pleas 
in support of its application, it cannot be 
required to remedy the applicant's omission 
by examining of its own motion the com­
plaints which the applicant was supposed to 
put forward. 
4. The plea alleging breach of the obligation 
t o state reasons 
152. The appellant claims that 'Article 162 of 
the Treaty required the Commission to state 
reasons for its decision [and] the same applied 
to the Agency, under Article 5 bis (g) of the 
Rules', with regard to its request for informa­
tion. 
153. In the first limb of this plea, which is 
directed against the Commission, the appel­
lant contends that 'the Commission decision 
of 10 January 1994', informing the appellant 
that the Agency's Decision 1/94 had been 
taken within the prescribed time-limit and 
that therefore the action initiated against the 
Agency for failure to act was to no purpose, 
stated no grounds justifying the point when 
time started to run or the calculation of the 
further period granted to the Agency for 
taking a decision on the contract. 
154. The appellant adds that in Decision 94/95 
the Commission also disregarded its obliga­
tion to state reasons by dealing in general 
terms with the question of the origin of the 
source materials, whereas it ought to have 
referred to the concepts of 'country of origin' 
and 'sources of supply'. 
155. Finally, the appellant complains that the 
Commission regarded the CIS as a whole as 
a 'particular source of supply' on which it 
would be dangerous for the Community to 
depend, which conflicts with the provisional 
agreement of 29 December 1994 with the 
Russian Federation, under which the Com­
munity undertook to regard 'Russia, in par­
ticular for the purposes of the Community's 
supply policy in the nuclear field, as a distinct 
and separate source of supply from other 
suppliers'. In this connection the appellant 
asks the Court of Justice to order, in accord­
ance with Article 21 of the EC Statute of the 
Court of Justice, 5 8 'production of the Council 
and Commission directives and other docu­
ments concerning the negotiation with Russia 
relating to the partnership and cooperation 
agreement' in order to show that the Com­
mission's opinion is contrary to its own 
practice. 
156. This first limb of the plea must be ruled 
inadmissible. 
58 — No doubt this should read: 'Article 22 of the EAEC Statute'. 
I - 2091 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
157. It is clear from the abovementioned pro­
visions of the Treaty and the EAEC Statute 
of the Court of Justice 5 9 that not only is an 
appeal to be limited to points of law, but it 
may be based only on grounds bearing on the 
judgment of the Court of First Instance, that 
is to say, lack of competence of the Court of 
First Instance, a breach of procedure before 
it which adversely affects the interests of the 
appellant or infringement of Community law 
by the Court of First Instance. 
158. The appellant's complaints are confined 
to claiming that no reasons were stated by the 
Commission in Decision 94/95 or in its letter 
of 10 January 1994, which the appellant 
describes as a decision, and no specific 
reference is made to points arising from the 
judgment. 
159. Above all, it must be observed that, 
under Article 48(2) of the Rules of Procedure 
of the Court of First Instance, no new plea in 
law may be introduced in the course of pro­
ceedings unless it is based on matters of law 
or of fact which come to light in the course 
of the procedure. 
160. The Court of Justice has consistently 
emphasised that 'to allow a party to put for­
ward for the first time before the Court of 
Justice a plea in law which it has not raised 
before the Court of First Instance would 
mean allowing that party to bring before the 
Court, whose jurisdiction in appeals is lim­
ited, a wider case than that heard by the Court 
of First Instance; [i]n an appeal the Court's 
jurisdiction is thus confined to examining the 
assessment by the Court of First Instance of 
the pleas argued before it'. 6 0 
161. Some of these complaints were never 
raised by the appellant at first instance, and 
the Court of First Instance therefore legiti­
mately confined the grounds of the judgment 
to the pleas which were raised. 
162. It is clear from the judgment and from 
the file of the Court of First Instance that the 
reasoning of Decision 94/95 relating to the 
origin of the products and the effect of the 
provisional agreement of 29 December 1994 
on the contract in question were not the sub­
ject of argument before the Court. 
163. Likewise the allegation that no grounds 
were given to justify the point at which time 
started to run and the calculation of the 
extended time-limit was directed against Deci­
sion 94/95 and not, as in the present case, 
against the letter of 10 January 1994. 
164. Finally, the request made by the appel­
lant in its reply, and repeated in the letter 
59 — Paragraph 114 of this opinion. 
60 — See the judgment in Deere ν Commission, cited above, 
paragraph 61 et seq. 
I - 2092 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
lodged at the Registry of the Court of Justice 
on 14 September 1998, for access to Council 
documents cannot be granted. The request is 
specifically made for access to additional evi­
dence which, as it was not examined at first 
instance, cannot be led before the Court of 
Justice on an appeal. If the Court of Justice 
has no jurisdiction in principle to examine 
evidence accepted by the Court of First 
Instance in support of the facts put before it, 
the Court of Justice quite certainly has no 
jurisdiction to take cognisance of evidence 
produced while the case was pending. 
165. With regard to the second limb of the 
plea, the appellant complains that the Court 
of First Instance gave a ruling only on the 
plea that the Commission was in breach of its 
obligation to state reasons, whereas the 
Agency, as the Community authority respon­
sible for the request for information and for 
the extension of the time-limit, was under a 
similar obligation in relation to any act pur­
suant to Article 53 of the Treaty. The appel­
lant considers that this irregularity renders 
illegal the Agency's decision, which ought to 
have stated the reasons for the unilateral exten­
sion of the time-limit. Therefore, according 
to the appellant, Commission Decision 94/95 
is vitiated, as is the view expressed by the 
Court of First Instance in paragraph 40 of the 
judgment. 
166. The application lodged at first instance 
shows that the complaint concerning a breach 
by the Agency of the obligation to state rea­
sons, based on Article 5 bis (g) of the Rules, 
was raised before the Court of First Instance. 
167. The Court does not mention this point 
in the summary of the parties' arguments in 
paragraph 44 and therefore did not reply to 
it in its findings in paragraph 46 et seq. of the 
judgment. 
168. Consequently this complaint is valid. It 
must therefore be found that the judgment 
does not state grounds in this respect and I 
propose that the present Court annul the 
judgment on this point, in so far as no ruling 
was given on the limb of the plea alleging that 
the Agency failed to state reasons. 
169. Under the first paragraph of Article 55 
of the EAEC Statute of the Court of Justice, 
the Court may, after setting aside the decision 
of the Court of First Instance, give final judg­
ment in the matter where the state of the pro­
ceedings so permits. As this is the case here, 
I consider it would be in the interests of the 
proper administration of justice for the Court 
to give judgment on this point. 6 1 
170. The first sentence of Article 5 bis (g) of 
the Rules, to which the appellant refers, pro­
vides that 'a refusal to conclude the contract 
shall be notified to the parties concerned in a 
reasoned decision'. 
61 — For a similar case, see the judgment in Case C-298/93 Ρ 
Klinke ν Court of Justice [1994] ECR I-3009, paragraphs 20, 
26 and 27. 
I - 2093 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
171. Clearly, therefore, the Agency must state 
reasons only where the decision referred to 
the Commission is a decision not to conclude 
a contract, which is not the case here as none 
of the Agency's acts to which the appellant 
refers has such refusal as its subject-matter. 
172. With regard to the letter of 10 December 
1993, in which the Agency asked the appel­
lant and BNFL, within the legal time-limit, 
for information on the origin of the uranium, 
the very subject-matter of the request clearly 
shows that the Agency attached great impor­
tance to obtaining information on the origin 
of the supplies before concluding the con­
tract, and no further explanation by the 
Agency on this point is necessary. There was 
nothing at that stage to indicate that a refusal 
was contemplated. 
173. Regarding the Agency's letter of 20 
December 1993, informing the appellant and 
BNFL of the requirements of its diversifica­
tion policy, describing the degree of depend­
ence already reached by the appellant and 
requesting the parties' observations as to the 
advisability of the contract, it must be observed 
that in that letter the Agency merely initiated 
a discussion with the parties on what then 
appeared to be only a proposal for a decision. 
In doing so, the Agency imparted to its letter 
a provisional nature inconsistent with a deci­
sion with adverse effects, which alone could 
be subject to the formal requirement of a 
statement of reasons. 
174. It should be added that the implicit 
decision to make the starting point for the 
legal time-limit subject to the possession of 
complete documentation cannot be treated as 
the later decision to refuse to conclude a con­
tract for supplies from the CIS. 
175. Consequently the second limb of the 
plea must be held to be unfounded. 
5. The plea alleging misuse of the Agency's 
powers 
176. The appellant argues that the Agency, in 
requesting additional information and 
extending the time-limit, exceeded the scope 
of its powers and misused them in that it had 
no discretion to make a decision on the con­
clusion of the contract, contrary to the find­
ings of the Court of First Instance. 
177. According to the appellant, the misuse 
of power is shown by the fact that the Agency 
departed from its former practice of allowing 
the entire needs for uranium to be covered by 
supplies from the CIS. The appellant adds 
that, by refusing to conclude the contract in 
I - 2094 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
question, the Agency was seeking to protect 
Western producers of uranium, thus pursuing 
a policy other than that for which it was given 
its powers. 
178. The Court of First Instance began by 
observing that 'it has been consistently held 
that a decision may amount to a misuse of 
powers only if it appears, on the basis of 
objective, relevant and consistent evidence, to 
have been taken for purposes other than those 
stated' and concluded that the appellant 'has 
adduced no evidence at all that the Agency 
and the Commission pursued an aim other 
than that of implementing the supply 
policy'. 6 2 
179. For the reasons given above, 6 3 the Court 
of Justice has no jurisdiction to give a ruling 
on the value of the evidence put before the 
Court of First Instance, save where that evi­
dence has been fundamentally misconstrued. 
180. In the present case, the appellant has in 
no way shown that the Court of First Instance 
misconstrued the evidence in finding that the 
appellant's argument that the Agency and the 
Commission had no discretion 64 did not 
prove any misuse of their powers. 
181. The appellant's assertion that the Agency, 
in exceeding the scope of its powers, misused 
them must be rejected. That question, which 
was considered in relation to the first plea 
examined in this Opinion, has no bearing 
upon the plea alleging misuse of powers 
which, as the Court of First Instance cor­
rectly observed, refers to cases where a Com­
munity institution exercises its powers for a 
purpose other than those for which its powers 
under the Treaty were conferred on it, not to 
cases where those powers are exceeded. 
182. The arguments alleging a break by the 
Agency with its previous policy and con­
cerning the protection of Western producers 
do not show that the Court of First Instance 
misconstrued the evidence. The appellant does 
not attempt to prove any such distortion 
because the complaints in question do not 
relate to the same subject-matter as the plea 
which the Court of First Instance addressed 
in its judgment. 
183. This particular point shows, further­
more, that these submissions are new because, 
although they could have been raised at first 
instance, they were never set out as com­
plaints in support of the plea in Case T-149/94 
alleging a misuse of powers. Consequently 
they must be dismissed as inadmissible. 
62 — Paragraphs 53 and 54 of the judgment. 
63 — Paragraph 114 et seq. of this Opinion. 
64 — Paragraph 52 of the judgment. 
I - 2095 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
Β — Case T-181/94 
The action for annulment 
1. The plea alleging infringement of Article 5 
his of the Rules and the provisions on sup­
plies in Chapter 6 of the Treaty 
184. It seems to me that two limbs can be 
distinguished in the appellant's complaints 
and arguments in support of this plea. 
(a) The first limb, alleging disregard of the 
scope of the Agency's powers 
185. The appellant states that it is not for the 
Agency to determine the common supply 
policy as this is a matter for the Community 
institutions. According to the appellant, the 
Agency does not possess the broad discretion 
which the Court of First Instance attributes 
to it in relation to the supply policy. There­
fore the Court should have carried out a 
careful review of the Agency's exercise of the 
powers conferred on it. 
186. The appellant adds that, although the 
Agency has a duty to refuse a contract where 
there is a legal obstacle to concluding it, it is 
not for the Agency to alter the terms of a 
contract by adding a condition relating to 
origin, as it did in this case. 
187. Finally, the appellant maintains that none 
of the three obstacles found by the Court of 
First Instance to the performance of the con­
tract was serious. 
188. Like the Court in paragraph 88 of the 
judgment, the appellant and the Commission 
consider that the first paragraph of Article 61 
of the Treaty, under which, it should be 
remembered, the Agency must meet all orders 
unless prevented from doing so by legal or 
material obstacles, applies to the present case. 
189. I think any ambiguity on this point must 
be cleared up. Article 61 forms part of Sec­
tion 2 of Chapter VI relating to supplies, 
entitled O r e s , raw materials and special fis­
sile materials from the Community'. 6 5 More­
over, when the legislature wished to extend 
the provisions of that section to the following 
section, entitled O r e s , raw materials and spe­
cial fissile materials from outside the Commu­
nity', 6 6 it did so expressly. For example, it is 
65 — Emphasis added. 
66 — Emphasis added. 
I - 2096 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
perfectly clear from the reference by Article 
65 to Article 60 that the ambit of the latter 
also extends to the supply of source materials 
from non-member countries. 
190. The same does not apply to Article 61 
and its scope is therefore manifestly limited 
to products from the Community, so that any 
reference to it in relation to a dispute con­
cerning imported products seems to me to be 
seeking to have Article 61 applied wrongly. 
191. However, the argument as to the legal 
basis of the Agency's acts is largely formal in 
so far as its acts are subject to requirements 
which, from our viewpoint, are comparable 
with those of Article 61. The Agency must 
meet orders placed by users, while ensuring 
that certain limits are not exceeded. 
192. That obligation and the associated limits, 
constituted by the Agency's power to oppose 
the conclusion of certain contracts, arise from 
the Treaty. 
193. The Treaty's aim of a regular and equi­
table supply of ores and nuclear fuels for users 
in the Community 6 7 may be used to measure 
the Agency's discretion. The need for a regular 
and equitable supply means that the Agency 
must meet orders placed by users so far as 
possible, while permitting it to object to those 
which may affect the objective of diversifica­
tion of supplies or breach the principle of 
non-discrimination. 
194. Consequently the grounds on which the 
Agency may refuse to conclude a contract are 
the same as those which application of Article 
61 would lead to being described as legal 
obstacles, so that the reasoning of the Court 
of First Instance in relation to that provision 
cannot be affected by the limits to its scope. 
195. Before examining the three grounds on 
which the Agency justifies the condition 
relating to origin laid down in Decision 1/94, 
I must turn again to the complaint that the 
Agency has no discretion with regard to the 
supply policy, and then to the argument that 
it has no power to impose a condition of 
origin. 
67 — See paragraph 94 of this opinion. 
I - 2097 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
196. As with the other aims of the European 
Atomic Energy Community, the performance 
of its tasks in the field of the supply of ores 
and nuclear fuels is assured by the Commu­
nity institutions within the limits of the powers 
conferred upon them by the Treaty. 6 8 
197. Article 52 of the Treaty lays down the 
principle of a common supply policy and 
establishes the Agency, which plays an essen­
tial part in implementing that policy. 
198. The Agency's exclusive right under 
Article 52 enables it to carry out its task in 
relation to supplying the Community with 
nuclear fuels. The principle of non­
discrimination between users is laid down at 
the same time to avoid endangering equal 
access to resources, which must guide the 
Agency in fulfilling its functions. 6 9 
199. As the Court of First Instance correctly 
observed in paragraph 86 of the judgment, 
'the simplified procedure introduced by 
Article 5 bis of the Rules does not deprive the 
Agency of its exclusive rights ...; [e]ven within 
the framework of the simplified procedure, 
the Agency therefore has the right to object 
to a contract which might prejudice the 
achievement of the objectives of the Treaty'. 
With regard to the balancing of supply and 
demand, the way in which the Agency exer­
cises its powers is governed by the Rules, 
adopted pursuant to the last paragraph of 
Article 60 of the Treaty, and those Rules also 
apply, under Article 65, to supplies from out­
side the Community. 7 0 
200. Article 5 bis of the Rules shows that the 
direct contacts authorised between users and 
producers in no way deprive the Agency of 
its exclusive right to conclude contracts. 
201. Altogether the Treaty provisions con­
cerning the Agency's powers give it a broad 
discretion where decisions concerning eco­
nomic and commercial policy and nuclear 
policy are involved, as the Court of First 
Instance correctly observed. 7 1 
68 — Articles 2(d) and 3(1) of the Treaty. 
69 — Article 52(2)(a) of the Treaty prohibits 'all practices designed 
to secure a privileged position for certain users'. The last 
paragraph of Article 52(2) prohibits the Agency from dis­
criminating 'in any way between users on grounds of the use 
which they intend to make of the supplies requested'. 
70 — In the third paragraph of point 20 of Decision 94/285 the 
Commission stated as follows: 'the fact that the Agency 
allows producers and users themselves to draw up contracts 
more easily and directly under a simplified procedure under 
the sixth paragraph or Article 60 of the Treaty, does not 
mean that the Agency loses these powers conferred on it by 
the Treaty'. 
71 — Paragraph 90 of the judgment. 
I - 2098 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
202. However, the breadth of that discretion 
must not be overestimated nor must it be for­
gotten that it derives its legitimacy from the 
relationship between the Agency and the 
Commission. 
203. The true nature of the Agency is revealed 
by the other relevant articles of the Treaty, 
particularly Articles 53 and 54. Although, 
under the latter, the Agency has legal person­
ality and financial autonomy, the first para­
graph of Article 53 provides that it is to be 
under the supervision of the Commission. 
Furthermore, it is made clear that the Com­
mission is to 'issue directives to it, possess a 
right of veto over its decisions and appoint its 
Director-General and Deputy Director-
General'. 
204. Therefore, with regard to the Agency, 
the Commission is far from being merely an 
appeal authority whose intervention would 
require the prior referral to it of the contested 
decision, as if it were a court with jurisdic­
tion to rule on the decisions of an indepen­
dent administrative authority. On the con­
trary, in view of the Commission's powers of 
initiative and prior objection in relation to 
the Agency, the latter's discretion appears 
entirely subject to the policy decided upon 
by the Commission. 
205. Consequently the appellant cannot claim 
that the Agency has unlawfully arrogated to 
itself power to determine the common supply 
policy in breach of the rules concerning the 
powers conferred on Community institutions 
by the Treaty. 
206. The institutional arrangements for the 
operation of the Agency do not support the 
idea that its decisions are taken by virtue of 
some kind of independent power to deter­
mine the common supply policy, because 
those decisions are approved afterwards by 
the Commission, at least implicitly, and con­
firmed by it in advance, and are therefore 
clearly the result of the policy of that institu­
tion, which is implemented by one of its 
administrative divisions. 
207. Therefore the Commission is indeed the 
Community institution responsible, under 
Article 3(1) of the Treaty, for the supply 
policy in relation to Community users and, 
although the Agency may have a broad dis­
cretion in that area, it must be observed that 
it is exercised within the limits which the 
Commission chooses to lay down. 
208. Consequently the argument that the 
Agency plays too large a part in determining 
the common supply policy must be dismissed. 
I - 2099 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
209. The appellant claims that the Agency 
has no right to alter the contract by adding 
conditions to it, contrary to the findings of 
the Court of First Instance on this point. 
210. Article 5 bis provides that the Agency 
must act either by concluding or refusing to 
conclude the contract. However, as I have 
said, I do not think it is consistent with the 
objectives of the Treaty to limit the Agency's 
decision-making power where it is unaware 
of the source of the supplies or where, as in 
the present case, it has legitimate reasons for 
believing that the origin of the products may 
imperil the reliability of supplies to the 
Member States of the Community. 7 2 
211. I must add that the condition in ques­
tion cannot be treated as an alteration to the 
contract because, when the Agency took its 
decision, the contracting parties themselves 
were not certain as to the country of origin 
of the products, which shows that the condi­
tion imposed by the Agency related to a term 
of the contract which had not been finally 
decided upon. What is more, I consider that, 
in view of the uncertainty, the Agency adhered 
to the wording of Article 5 bis by concluding 
the contract on the assumption that the prod­
ucts would not come from the CIS, but 
refusing to do so otherwise. Therefore the 
alternative laid down by Article 5 bis was 
observed. 
212. The appellant questions the existence of 
the obstacles referred to by the Commission 
and found to exist by the Court of First 
Instance. 
213. The reasons for not meeting the order 
are, let me repeat, the need for diversification 
of external sources of supply, the level of 
prices stemming from the Trade Agreement, 
and the obligation to ensure equal access to 
resources. 
214. The Court of First Instance found that 
'where decisions concerning economic and 
commercial policy and nuclear policy are 
involved, the Agency has a broad discretion 
when exercising its powers'. From this, the 
Court concluded that its own review must be 
confined to identifying any manifest error of 
assessment or misuse of powers. 7 3 
72 — Paragraph 101 et seq. of this opinion. 73 — Paragraph 90 of the judgment. 
I-2100 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
215. The decisions of the Agency and the 
Commission in relation to the common supply 
policy are determined by the requirements 
not only of non-discrimination, but also of 
reliability of supply. Consequently, they 
depend on the present and future state of the 
market for nuclear materials, which necessi­
tates an assessment of probable changes in the 
pattern of supply and demand, taking account 
of economic factors such as prices or the con­
sequences of trends followed by non-member 
countries in exporting the nuclear fuels which 
they produce. 
216. With regard to the appraisal of complex 
economic situations, the Agency, subject to 
the supervision of the Commission, has a 
broad discretion, which the Commission also 
has in the matter of common commercial 
policy. 7 4 
217. Therefore the Court of First Instance 
was correct in stating that judicial review of 
such an appraisal must be limited to verifying 
whether the relevant procedural rules were 
complied with, whether the facts on which 
the choice was based were accurately stated 
and whether there was a manifest error of 
appraisal or a misuse of powers. 7 5 
218. The appellant contends that there is no 
legal obstacle arising from the long-term risk 
of dependence on supplies from the CIS. 
219. The appellant's arguments, as they appear 
in substance from the report for the hearing, 
are as follows. 
220. It submits that it is for the Community 
institutions, not the Agency, to establish the 
permissible degree of dependence of the Com­
munity in relation to supplies from the CIS. 
221. O n this point, before dealing with the 
appellant's further arguments, I refer to my 
discussion of the powers conferred by the 
Treaty upon the Agency in relation to the 
common supply policy, and I repeat that this 
argument must be rejected. 7 6 
222. The appellant goes on to point out that 
the Commission referred to the existing pro­
duction capacity of the CIS States, which was 
said to represent some 25%. However, 
according to the appellant, the Commission 
said nothing regarding long-term production 
74 — See, for example, the judgments in Case 260/84 Minebea ν 
Council [1987] ECR 1975, paragraph 28, and Case C-156/87 
Gestetner Holdings ν Council and Commission [1990] ECR 
I-781, paragraph 63. 
75 — Paragraph 90. 76 — See paragraph 195 et seq. of this opinion. 
I-2101 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
capacity and the long-term dependence which 
would result for the Community, although it 
had made an estimate of these data, which 
were essential for assessing dependence on 
the CIS. Although the European Union had 
recognised the independence of the Russian 
Federation and of the other CIS States since 
the end of 1991, and although not all the suc­
cessor States of the former USSR were mem­
bers of the CIS, neither the Agency nor the 
Commission distinguished between the very 
different production capacities of those sov­
ereign States. 
223. According to the appellant, the Court of 
First Instance infringed Article 61 in conjunc­
tion with Articles 2(d) and the last sentence 
of Article 3(1), as well as Article 136 of the 
Treaty, when, in order to assess the risk of 
long-term dependence, which would consti­
tute a legal obstacle to the conclusion of the 
contract, it regarded the whole of the CIS as 
a single source of supply, thus adopting the 
Commission's assumptions on this point 
without verification. 
224. In this connection, the appellant con­
tends that the Commission relied on produc­
tion capacities only, without taking account 
of the fall in prices, particularly on spot mar­
kets, or of the existence of large stocks, which 
explained the volume of materials available 
from the CIS. However, according to the 
appellant, it could be foreseen that these stocks 
would be used up within a few years, regard­
less of the uranium deposits and production 
capacity of the CIS. Since, according to the 
Commission, the production of the CIS States 
accounted for approximately 25% and that 
figure was also the upper limit for admissible 
dependence in relation to supplies from the 
CIS, the Commission had made a manifest 
mistake in asserting that if an individual supply 
undertaking exceeded the 25% limit, this 
could lead in the long term to an unaccept­
able degree of dependence for the entire Com­
munity on supplies from the CIS. The pri­
mary cause of the fall in prices, particularly 
on the spot markets, had been the reduction 
in stocks. 
225. The appellant adds that both the Agency 
and the Commission were also mistaken in 
their price forecasts. It had been clear from 
the beginning that prices would have sta­
bilised by the year 2000. In fact, they had 
stabilised in 1996. 
226. The appellant also observes that, at the 
beginning of the next century, production 
capacity would be about 90% of demand. 
Therefore it could not be said, as the Court 
of First Instance stated, that there would be a 
'structural deficiency' for such a short period. 
In reality, Community production had a 'defi­
ciency structure' because Community ura­
nium deposits are very small. A policy of 
diversification, however skilful it might be, 
could not alter this because, by virtue of 
natural laws, the distribution of uranium 
deposits throughout the world was not gov­
erned by the Agency's 'supply policy'. 
According to the appellant, this explains why 
the Court of Justice dismissed E N U ' s 
I-2102 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
application in the case of ENU ν Commis­
sion. 77 
227. The appellant complains that the Com­
mission, in regarding the restriction of sup­
plies on the spot market to 10% as one of the 
principles of the Community's supply policy, 
took into account the fact that the appellant 
covered more than 150% of its annual require­
ments by purchasing materials from the CIS 
on the spot market. According to the appel­
lant, this opinion is not consistent with the 
division of powers established by the Treaty 
and is contrary to the freedom to contract 
and the freedom of enterprise guaranteed by 
the German Constitution and the Commu­
nity legal order. 
228. There is nothing in the legal system of 
the Treaty to justify an obligation, on the part 
of supply undertakings, to cover most of their 
needs by means of long-term contracts and 
not on the spot market. The period of validity 
of supply contracts between the parties was a 
matter for them alone, even though the Agency 
had exclusive power to conclude or refuse to 
conclude the contract. The opinion that the 
appellant's supplies on the spot market 
infringed the principle of equal access to 
resources or indicated a privileged position 
within the meaning of Article 52(2)(a) of the 
Treaty was mistaken in law. The judgment 
should be set aside on this ground also. 
229. The appellant adds that, in free-market 
economies, it is inconceivable that an under­
taking should be punished merely because, 
after assessing market trends more accurately 
than its competitors, it uses them as a reason 
for refusing to conclude long-term contracts. 
230. Finally, the 'internal assessment crite­
rion' of 25% permissible dependence of each 
user in relation to supplies from the CIS was 
exceeded by contracts previously concluded 
by the Agency in 1991 and 1992, without the 
latter seeing this as a legal obstacle. Therefore 
the appellant was legitimately entitled to 
assume that the Agency would have no objec­
tion to the contract. 
231. The appellant's arguments show clearly 
that, in essence, it seeks to dispute the facts 
as found by the Court of First Instance and 
to question its assessment, which cannot be 
reviewed, of both the facts and the evidence 
put before it. However, the appellant is not 
permitted to do this. 7 8 Examination by the 
Court of Justice of each of the appellant's 
complaints, most of which are of a purely 
factual nature, would amount to accepting 
that the Court has jurisdiction, in the context 
of an appeal, to examine a complex factual 
situation, contrary to the provisions of the 
Treaty and the EAEC Statute of the Court of 
Justice. 
77 — Case C-357/95 Ρ [1997] ECR I-1329. 78 — See paragraph 114 et seq. of this opinion. 
I - 2103 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
232. I should add that, with a very few excep­
tions, the appellant's submissions in no way 
indicate, and in any case not precisely, the 
contested elements of the judgment which the 
appellant seeks to have set aside, but the 
appellant has an obligation to indicate these 
under the Rules of Procedure of the Court of 
Justice, as interpreted by settled case-law. 7 9 
233. What is more, certain complaints are 
directed at the Agency or the Commission, 
without the slightest criticism of the judg­
ment of the Court of First Instance or even 
the slightest reference to it. 
234. Likewise, the appellant's arguments in 
support of the application for annulment are 
mostly non-existent or, where they exist, the 
legal arguments are not adduced precisely and 
rigorously in support of reasoning which casts 
doubt on the judgment in question. 
235. With regard, in particular, to the com­
plaint that the Court of First Instance deemed 
all the CIS States to be a single source of 
supply in the reasoning which led it to find 
that there was a legal obstacle to the conclu­
sion of the contract, it must be observed that 
the references to specific provisions of the 
Treaty are not sufficient to justify an exami­
nation by the Court of Justice of the merits 
of the complaint. The appellant has produced 
nothing to establish a connection between the 
alleged irregularity and the provisions to which 
the appellant refers. 
236. I conclude therefore that the arguments 
seeking to cast doubt on the existence of an 
obstacle relating to the policy of diversifica­
tion of sources of supply are inadmissible. 
237. As the appellant's complaints on this 
point must be rejected, the Court will not be 
required, in my view, to give a ruling on the 
other limbs of the plea disputing the provi­
sions of the judgment relating to, first, the 
merits of the legal obstacle arising from Article 
14 of the Trade Agreement and, second, the 
principle of equal access to resources. 
238. It is clear from settled case-law that the 
C o u r t will reject out r ight complaints directed 
against grounds given in a judgment of the 
Court of First Instance merely for the sake of 
completeness, since the latter cannot provide 
any basis for its annulment. 8 0 
239. In the present case it is sufficient if any 
one of the reasons given against concluding 
79 — See paragraph 82 et seq. of this Opinion. 
80 — See the order in Case C-137/95 P, SPO and Others ν Com­
mission [1996] ECR I-1611, paragraph 47 et seq.. 
I - 2104 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
the contract and found valid by the Court of 
First Instance cannot be called into question 
for Decision 94/285 to be deemed lawful in 
that respect. The grounds of the judgment 
examining the contract are sufficient to justify 
the dismissal of the appeal on this point. 
(b) The second limb, alleging infringement of 
the aims of Articles 1 and 2 of the Treaty 
240. The appellant contends that the Court 
of First Instance misconstrued the aims of 
Articles 1 and 2 of the Treaty in finding that 
it was in the interest of the Community 
nuclear industry that a particular source of 
supply, such as the CIS as a whole, should 
not become too important in relation to alter­
native sources. 
241. The appellant claims that only sovereign 
States should be regarded as sources of supply. 
It also considers that the diversification of 
sources of supply is not one of the aims 
referred to in Article 2 of the Treaty, and adds 
that the Commission and the Agency contra­
vened the principle of freedom of supply 
granted to users by the Treaty. 
242. I have already said why it seems to me 
that the principle of a regular supply for all 
Community users laid down by Article 2(d) 
of the Treaty depends on diversification of 
the sources of supply. 8 1 Contrary to what the 
appellant says, such diversification must there­
fore be deemed an independent aim of the 
Treaty, because without it the principle may 
be rendered meaningless. 
243. Moreover, the appellant does not specify 
the legal basis for its statement that the limits 
on the freedom of supply laid down by the 
Treaty are not justified. 
244. Finally, the same observation applies to 
the complaint concerning the definition of 
sources of supply. N o legal grounds are 
adduced in support of the argument that the 
term is strictly limited to States, and excludes 
a group of States or a particular part of the 
world. O n the contrary, the appellant sets out 
a number of factual submissions on this point, 
thus revealing its intention of disputing the 
assessment by the Court of First Instance. 
245. Purely for the sake of completeness, let 
me add that, in the absence of a precise defi­
nition by the Treaty of the geographical nature 
of the sources which must be taken into 
account to achieve the aims of reliability and 
81 — Sec paragraph 94 et seq. of this opinion. 
I-2105 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
diversification of supply, it would be possible 
for several States to be considered together 
for assessing the risk to the Community 
arising from a large increase in the supply 
contracts concluded with them. Under these 
circumstances, a single limit of permissible 
dependence may perfectly well be applied to 
a group of sovereign States. 
2. The plea alleging breach of the principle of 
legal certainty and of the principles of equal 
treatment and proportionality 
(a) Breach of the principle of legal certainty 
246. As stated in the report for the hearing, 
the appellant complains of a lack of transpar­
ency, consistency and foreseeability in the 
Agency's conduct, which is not subject to 
democratic control of any kind. 
247. The appellant contends that Decision 
1/94 does not show that the requirement of 
market-related prices is inferred from Article 
14 of the Trade Agreement with the USSR, 
that is to say, an agreement with a State which 
has ceased to exist. The appellant considers 
that it cannot be bound by findings made in 
1992 by a working party of experts set up in 
the framework of the Advisory Committee 
sitting in camera, whose conclusions were 
based entirely on Western production costs, 
which were not the same thing as market-
related prices. N o r could it have been fore­
seen, according to the appellant, that the 
Agency would infer, from the finding in its 
annual report for 1992 that imports of natural 
uranium from the CIS represented approxi­
mately 25% of net Community needs, that 
the 'existing long-term production capacity' 
of the CIS and its share of world production 
were also 25%. Finally, the appellant claims 
that it could not have anticipated that the 
Agency and the Commission would not 
observe the international agreements with the 
CIS States under which each of the latter was 
to be deemed a particular source of supply. 
As the Agency had previously concluded con­
tracts with the appellant and other users at 
prices which were not 'market-related', there 
was nothing to indicate that the Agency would 
evolve from an internal document a com­
pletely different 'common supply policy' 
which it had no power to decide on under 
Article 52(1). 
248. The appellant adds that even the most 
prudent commercial undertaking could not 
anticipate that the Agency would consider 
the Community's reliability of supply to be 
imperilled in the medium and long-term if a 
single small user like itself covered in one 
year 150% of its annual needs by buying on 
the spot market, without having concluded 
long-term contracts. 
I-2106 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
249. The appellant's true purpose in making 
these submissions is to question the assess­
ment by the Court of First Instance of the 
facts. 
250. The Court of First Instance observed 
that 'the measures on which the Agency's 
approach is based, namely the Council Reso­
lution, which sets out in the second indent of 
point 5(a) the aim of geographical diversifica­
tion of the Community's external sources of 
supply, and the Trade Agreement, which pro­
vides in Article 14 that prices must be market-
related, have both been published in the Offi­
cialjournal of the European Communities'. 8 2 
251. Citing the Agency's annual report for 
1992 with regard to the high level of imports 
of natural uranium from the CIS and the 
contracts concluded for future deliveries, and 
with regard to the price levels, 'which were 
unrelated to production costs in the West', 
and also with regard to the opinion of the 
Commission and the Agency that corrective 
measures were justified, the Court of First 
Instance was entided to conclude that 'hav­
ing regard to the existence of easily accessible 
sources of information which a reasonably 
diligent trader in this very particular and 
clearly identified sector must be taken to 
know, it cannot be said that there was a lack 
of transparency'. 8 3 
252. The appellant merely sets out and 
develops these purely factual arguments 
without referring to a single point of law 
which might call into question this assess­
ment by the Court of First Instance. 
(b) Breach of the principle of equal treatment 
253. The appellant claims that the Court of 
First Instance did not carry out a proper 
examination of its complaints concerning 
breach of the principle of equal treatment. 
254. According to the appellant, the last para­
graph of Article 52(2) of the Treaty requires 
the Agency not to discriminate between users 
on grounds of the use which they intend to 
make of the supplies requested. The applica­
tion by the Agency of its internal assessment 
criterion causes it to allocate to large State 
undertakings the same quantities of uranium 
from the CIS as to small, legally independent, 
private undertakings, whereas the State under­
takings are much better able to draw up their 
plans, and for a longer term, than small under­
takings such as the appellant. This is said to 
be discriminatory treatment. 
255. The appellant merely asserts that the 
Court of First Instance did not examine its 
82 — Paragraph 125 of the judgment 
83 — Paragraphs 126 and 127. 
I-2107 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
complaints relating to this part of the plea, 
but does not give details of the shortcomings 
which might affect the validity of the judg­
ment. O n the contrary, it must be said that 
the Court was right to approve the Agency's 
approach, which consists in applying a 
threshold of permissible dependence for each 
undertaking in order to ensure equal access to 
resources for undertakings established in the 
Community. 8 4 
256. It must be added that the fixing of a 
maximum percentage for the needs of each 
undertaking does not show discrimination 
based on the use of supplies or discrimination 
on any other basis. In any case, the conclu­
sions of the Court of First Instance on this 
point do not reveal a breach of any rule of 
law. 
(c) Breach of the principle of proportionality 
257. The appellant complains that the Court 
of First Instance disregarded the fact that the 
Agency, in excess of its powers, itself decided 
on its supply policy and failed to examine the 
possibilities offered by the second paragraph 
of Article 65 and Articles 70 and 72 of the 
Treaty. The Court is also said to have omitted 
to find that the subsequent addition of a 
clause to the supply contract was likewise a 
serious infringement of the freedom to con­
tract, which is protected by the Community 
legal order. Such infringement ought to have 
been specifically justified by reference to the 
principle of proportionality. 
258. According to the appellant, under the 
first paragraph of Article 61 of the Treaty, 
Article 5 bis (f) of the Rules and its own 
regulations, the Agency has power only to 
conclude or to refuse the contract in its 
entirety, not to add a new clause to it. In only 
one place does the Treaty grant the Agency a 
right to intervene in the contractual relation­
ship in order to give it proper form, that is to 
say, in the second paragraph of Article 65. 
However, even in that case, the Agency may 
decide on the geographical origin of supplies 
only if conditions at least as favourable as 
those specified in the order are thereby secured 
for the user. The second paragraph of Article 
65 should not be applied by analogy because 
in the present case the conditions of delivery 
were altered to the disadvantage of the par­
ties to the contract, so that only the obliga­
tion laid down by the first paragraph of 
Article 61 arose. As there was no legal or 
material obstacle to the conclusion of the 
contract, the Agency had an obligation to 
conclude it. If there really had been a legal 
obstacle, the Agency would have been required 
by the first paragraph of Article 61 to refuse 
to conclude the contract. By concluding it 
nevertheless and by adding a condition, it 
exceeded its powers. 
259. Firstly, the appellant complains, in 
essence, that on the one hand the Court of 
First Instance did not take account of the 
arguments before it, and on the other that it 
did not state sufficient grounds for its judg­
ment on several points. 84 — Paragraph 132 of the judgment. 
I-2108 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
260. However, the Court of First Instance 
gave a clear and adequate decision in finding 
— correctly — that application of the provi­
sions of the Treaty referred to by the appel­
lant would have been of no assistance in that 
the Agency, 'considering the aims of its supply 
policy, had to block imports from the CIS at 
non-market-related prices'. 8 5 
261. Above all, the Court of First Instance 
gave sufficient grounds for finding that the 
condition of origin imposed by the Agency 
was lawful with regard to the principle of 
proportionality, by referring to the other 
grounds of the judgment relating to the need 
for the Agency to be able bar uranium imports 
if they might jeopardise the geographical 
diversification of sources of supply. 
262. Therefore the aim of the contested mea­
sure is expressly mentioned and the judgment 
shows clearly that continued imports of 
nuclear materials from the CIS would have 
been likely to jeopardise fulfilment of the 
requirement of regular supplies. 8 6 
263. Secondly, with regard to the argument 
that the Agency had no power to impose a 
condition for the conclusion of the contract 
and that there were no obstacles to perfor­
mance of the contract, I refer to my earlier 
observations on these points. 8 7 
264. Consequently the appellant's plea must 
be dismissed. 
3. The plea alleging breach of the rules on 
the division of powers 
265. The appellant contends that the Court 
of First Instance disregarded the distribution 
of powers laid down by the Treaty by finding 
that the Agency had the right to determine 
the common supply policy, whereas it has 
only quasi-notarial functions and powers of a 
purely commercial nature. 
266. On this point I take the liberty of refer­
ring to my foregoing observations on the roles 
of the Agency and the Commission in deter­
mining the Community's supply policy and 
the scope of the Agency's powers in that 
respect. It is clear from what I said that the 
85 — Paragraph 135 of the judgment 
86 — Paragraphs 92 to 94 of the judgment. 87 — See paragraphs 209 et seq. and 212 et seq. of this opinion. 
I-2109 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
Treaty provisions authorise the Agency to 
make decisions, under the close supervision 
of the Commission, in relation to the common 
supply policy. Therefore the appellant's plea 
must be dismissed.8 8 
4. The plea alleging breach of the obligation 
to state reasons 
267. The appellant claims that the Court of 
First Instance did not fulfil its obligation to 
state reasons because it failed to examine the 
complaint that the Commission did not show 
a structural relationship between the Agen­
cy's powers and the Treaty and did not state 
why the appellant would become dependent 
on supplies from the CIS or in what way the 
purchase price agreed in the contract did not 
conform to market conditions. 
268. The appellant adds that the Commis­
sion's reasoning is not consistent with taking 
the production capacity of the CIS States as 
a criterion, which, according to the appellant, 
is decisive for determining Community 
dependence. 
269. Finally, the appellant contends that, con­
trary to what the Court of First Instance 
states in paragraph 146 of the judgment, the 
action does not relate to the reasons for the 
Agency's refusal to conclude the contract, but 
the reasons why the Commission did not 
exercise its right under the second paragraph 
of Article 53 of the Treaty. 
270. First of all, the limb of the plea alleging 
irregularity in the Commission's reasoning 
concerning the production capacity of the 
CIS States must be dismissed. This part of the 
appellant's argument is, as the Commission 
rightly points out, directed against the latter's 
decision and does not call the judgment into 
question. Furthermore, the appellant brings 
its argument to bear on purely factual aspects 
of the matter and omits to put forward pleas 
in law. 
271. Secondly, with regard to the alleged 
failure of the Court of First Instance to state 
reasons, it must be noted that the Court stated 
that 'the Commission made it clear in its 
decision that the Agency is not obliged to 
meet orders where there are legal or material 
obstacles to doing so (point 14 of Decision 
94/285)', before pointing out that the Com­
mission 'referred first to Article 64 of the 
Treaty, under which the Agency may act 
within the framework of agreements con­
cluded between the Community and a third 
State ... (point 21)'. 89 
88 — See paragraphs 195 to 208 of this opinion. 89 — Paragraph 145 of the judgment. 
I-2110 
KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
272. This reasoning is a clear reply by the 
Court of First Instance to the part of the 
appellant's plea relating to the Agency's power 
under the Treaty, because the judgment refers 
expressly to Article 64, the main purpose of 
which is to give the Agency the exclusive 
right, within the framework of agreements 
with a third State or international organis­
ation, to enter into contracts for supplies from 
outside the Community. 
273. Furthermore, it being unnecessary to 
comment once again on the application of 
Article 61 in so far as the appellant's submis­
sions in support of this plea relate to the 
alleged insufficiency of the reasons given by 
the Court of First Instance and not to the rel­
evance of the legal basis established, it is suf­
ficient to observe that the reference in the 
judgment to the limits on the Agency's obli­
gation to meet orders for supplies is an implicit, 
but clear, reference to that Article of the 
Treaty, which is alleged to form the basis of 
the Agency's power to object to the conclu­
sion of a contract in specific circumstances. 
274. In addition, it appears from the judg­
ment that, contrary to what the appellant says, 
the Court of First Instance gave a ruling on 
the Commission's statement of the reasons 
why it considered that the appellant would 
become dependent on supplies from the CIS. 
275. The judgment shows that the Court 
referred to point 33 of Decision 94/285, which 
states that 'a further increase in the propor­
tion of supplies coming from the CIS [at 
present 20-25%] would be difficult to recon­
cile with the Community's long-term supply 
interests'. 9 0 This is a clear, unambiguous state­
ment of the reasons which led the Commis­
sion to take the decision in question particu­
larly as, although the Court does not 
reproduce the whole of point 33, it cites it 
specifically, so that the appellant could have 
referred to it and established that the Com­
mission pointed out that 'the Community has 
concluded multiannual supply agreements 
with a number of third countries' and that 
'the common supply policy must also take 
account of relations with these trading part­
ners and with other supplier countries'. 9 1 
276. It should be observed that the Court of 
First Instance did not reply expressly to the 
appellant's argument that the Commission 
did not state the reasons why the price stipu­
lated in the contract did not accord with 
market-economy conditions or was not 
market-related. 
277. The Court merely stated that the Com­
mission's decision referred to Article 64 of 
the Treaty, under which the Agency may act 
within the framework of agreements con­
cluded between the Community and a third 
State, before referring to Article 14 of the 
90 — Ibid. 
91 — Point 33. 
I-2111 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
Trade Agreement which, it will be recalled, 
made trade in goods between the Commu­
nity and the USSR subject to the requirement 
that prices are market-related. 
278. However, as I pointed out above when 
discussing the complaints that Decision 94/285 
did not state sufficient reasons in relation to 
the Agency's power and the risk of depen­
dence on the CIS, the Court of First Instance 
set out in full the grounds showing why the 
reasoning of the decision was sufficient on 
these two points, observing that 'Decision 
94/285 discloses clearly and unequivocally the 
principal reasons for the refusal to conclude 
the contract submitted by KLE'. 9 2 
279. Having concluded that the Commis­
sion's decision was justified by the reasoning 
dealing with these two arguments, the Court 
was entitled to refrain from examining the 
complaint relating to price levels other than 
by dismissing it implicitly by a reference to 
the sufficiency of the principal reasons for the 
decision. 
280. The Commission also notes, correctly, 
that the Court of First Instance, by summa­
rising and repeating the principal reasons for 
the contested decision, espoused the Com­
mission's reasoning and thus rejected the 
appellant's complaints. 
281. Consequently the appellant's plea must 
be dismissed. 
5. The plea alleging misuse of powers 
282. The appellant complains that the Court 
of First Instance did not ascertain whether 
the measures taken by the Agency were within 
the scope of its powers, which was a neces­
sary prerequisite for verifying the purpose 
actually pursued by the Agency. According 
to the appellant, this could not be ascertained 
because there was no comparable examina­
tion of the role of the Commission itself. 
283. The appellant contends that the Court, 
by making no distinction between the Agency 
and the Commission when it stated that the 
appellant had not proved that they had both 
pursued an aim other than implementing the 
supply policy, disguised the fact that, in this 
plea, the appellant intended to criticise pri­
marily the lack of reasons in the Commis­
sion's decision and only indirectly to criticise 
the Agency in that regard. The appellant com­
plains that the Commission did not exercise 
its right of veto over decisions in excess of 
the Agency's powers under the Treaty, in 
accordance with the first paragraph of 
Article 53. 92 — Paragraph 146 of the judgment, emphasis added. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
284. Finally, according to the appellant, the 
Court's reference to the Agency's letter of 20 
December 1993 proves that the Agency was 
seeking to protect Western producers. 
285. The limb of the plea alleging that the 
Court of First Instance failed to ascertain that 
the Agency acted within its powers cannot 
succeed. 
286. It is sufficient to observe that the Court 
of First Instance gave an express ruling on the 
nature and extent of the Agency's powers and 
on the legality of the Commission's decision 
in the light of those powers. 
287. After stating that 'the task of the Agency 
is to guarantee one of the essential aims which 
the Treaty assigns to the Community, in 
Article 2(d), namely reliability of supplies, in 
accordance with the principle of equal access 
to resources', the Court of First Instance 
pointed out that the Treaty 'establishes that 
specialised body expressly for that purpose' 9 3 
and that 'where decisions concerning eco­
nomic and commercial policy and nuclear 
policy are involved, the Agency has a broad 
discretion when exercising its powers'. 9 4 
288. Having determined this legal framework, 
the Court then ascertained that the three 
obstacles relied upon by the Commission to 
justify the condition concerning origin laid 
down in the contract existed. 9 5 
289. The appellant's argument that the Court 
did not distinguish between the Agency and 
the Commission in the part of the judgment 
relating to the plea alleging misuse of powers, 
whereas the Commission was described in 
the first limb as not having exercised its right 
of veto, must be dismissed as inadmissible. 
290. The reason is that the only point of law 
relied upon concerns the Commission's power 
to object to measures taken by the Agency. It 
must be borne in mind that the plea before 
the Court of First Instance was that the Com­
mission had misused its powers which, in the 
absence of arguments to prove that they were 
exercised for an improper purpose, disposes 
of the idea of inappropriate use of the right 
of veto. 
291. Regarding the reference at first instance 
to the Commission's letter of 20 December 
1993, it must be observed that the appellant's 
argument seeks to challenge the assessment of 
the evidence before that Court, which can be 
allowed only in so far as the argument in 
93 — Paragraph 85 of the judgment 
94 — Ibid., paragraph 90. 95 — Ibid., paragraph 89 et seq.. 
I-2113 
OPINION OF MR LÉGER — CASE C-161/97 Ρ 
question is such as to show that the evidence 
was misconstrued. 
292. In contending that the aim was to pro­
tect Western producers, the appellant is clearly 
not trying to show that the evidence was mis­
construed, but to adduce new evidence in 
support of its arguments. 
293. As this submission is new and it cannot 
prove that the evidence put before the Court 
of First Instance was misconstrued, it must 
be ruled inadmissible. Consequently the plea 
must be dismissed in its entirety. 
The action for damages 
294. The appellant maintains that, by dis­
missing the claim for damages on the ground 
that the Agency's conduct and the Commis­
sion's refusal to accede to the appellant's 
requests were not vitiated by any irregularity, 
the Court of First Instance disregarded the 
fact that the applications for annulment related 
only to the Commission's decision. However, 
according to the appellant, the claim for dam­
ages related to the damage suffered by reason 
of the Agency's unlawful conduct, on which 
therefore the Court ought to have given a 
ruling. 
295. As the Commission correctly points out, 
this plea cannot succeed because when the 
Court of First Instance, on examining the 
applications for annulment of the Commis­
sion's decisions, found that the conduct of 
the Agency and the Commission was lawful, 
it also made an assessment of the legality of 
the Agency's decisions which amounts to a 
reply to the plea at first instance. It must be 
added that the observations in the judgment 
concerning the Agency's conduct do not dis­
close any grounds which might indicate mis­
conduct. Finally, the appellant has made no 
observations relating to the facts adduced at 
first instance on which it alleges that the 
Court did not give a ruling and which might 
indicate such misconduct. 
VI — Costs 
296. Under the first paragraph of Article 122 
of the Rules of Procedure, where the Court 
itself gives final judgment in the case, it is to 
make a decision as to costs. 
297. Article 69(3) of the Rules of Procedure, 
which by virtue of Article 118 applies to the 
procedure on appeal, provides that, where 
each party succeeds on some and fails on 
other heads, the Court may order that the 
parties bear their own costs. 
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KERNKRAFTWERKE LIPPE-EMS ν COMMISSION 
Conclusion 
298. In view of the foregoing, I propose that the Court: 
(1) annul the judgment of the Court of First Instance of 25 February 1997 in 
Joined Cases T-149/94 and T-181/94 Kernkraftwerke Lippe-Ems ν Commis­
sion, in so far as it did not reply to the plea in Case T-149/94 alleging failure 
by the Euratom Supply Agency to state the reasons for a unilateral extension 
of the time-limit laid down by Article 5 bis (f) of the Regulation of 15 July 
1975 of the Supply Agency of the European Atomic Energy Community 
amending the Rules of the Supply Agency of 5 May 1960 determining the 
manner in which demand is to be balanced against the supply of ores, source 
materials and special fissile materials; 
(2) ruling on the plea, declare the application unfounded; 
(3) for the remainder, dismiss the appeal; 
(4) order the parties to bear their own costs. 
I-2115