61978CJ0243_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 243/78
SIMMENTHAL S.P.A ., HAVING ITS REGISTERED OFFICE IN APRILIA ( ITALY ), REPRESENTED BY EMILIO CAPPELLI AND PAOLO DE CATERINI, ADVOCATES OF THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF CHARLES TURK, 4 RUE NICHOLAS WELTER,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, H . BRONKHORST, ACTING AS AGENT, ASSISTED BY GUIDO BERARDIS, A MEMBER OF THE
LEGAL DEPARTMENT OF THE COMMISSION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF COMMISSION DECISION NO 78/940/EEC OF 27 OCTOBER 1978 FIXING THE MINIMUM SELLING PRICES FOR FROZEN BEEF PUT UP FOR SALE BY THE INTERVENTION AGENCIES IN ACCORDANCE WITH REGULATION ( EEC ) NO 2900/77 AND SPECIFYING THE QUANTITIES OF FROZEN BEEF FOR PROCESSING WHICH MAY BE IMPORTED UNDER SPECIAL TERMS IN THE FOURTH QUARTER OF 1978 ( OFFICIAL JOURNAL L 326, P . 14 ),
Grounds
1 BY AN APPLICATION LODGED ON 3 NOVEMBER 1978 PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY THE APPLICANT REQUESTS THE COURT TO DECLARE COMMISSION DECISION NO 78/940/EEC OF 27 OCTOBER 1978 FIXING THE MINIMUM SELLING PRICE FOR FROZEN BEEF PUT UP FOR SALE BY THE INTERVENTION AGENCIES IN ACCORDANCE WITH REGULATION ( EEC ) NO 2900/77 AND SPECIFYING THE QUANTITIES OF FROZEN BEEF FOR PROCESSING WHICH MAY BE IMPORTED UNDER SPECIAL TERMS IN THE FOURTH QUARTER OF 1978 ( OFFICIAL JOURNAL L 326, P . 14 ) TO BE VOID .
2 BY AN APPLICATION LODGED ON THE SAME DATE PURSUANT TO ARTICLES 185 AND 186 OF THE EEC TREATY AND ARTICLES 83 ( 1 ) OF THE RULES OF PROCEDURE THE APPLICANT REQUESTED THE COURT TO SUSPEND THE EFFECTS OF THE DECISION FORMING THE SUBJECT-MATTER OF THE PRINCIPAL APPLICATION AND ALSO TO SUSPEND THE APPLICATION OF THE SPECIAL ARRANGEMENTS FOR THE IMPORTATION OF FROZEN MEAT INTENDED FOR THE PROCESSING INDUSTRY FOR 1979 . THAT APPLICATION WAS REFUSED BY AN ORDER OF THE PRESIDENT OF THE COURT IN CASE 243/78 R OF 29 NOVEMBER 1978 (( 1978 ) ECR 2391 ).
3 IT SHOULD BE BORNE IN MIND THAT THE COURT, BEFORE WHICH THE SAME APPLICANT INSTITUTED PROCEEDINGS AGAINST COMMISSION DECISION NO 78/258 OF 15 FEBRUARY 1978 ADOPTED FOR THE FIRST QUARTER OF 1978 IN CONNEXION WITH THE SPECIAL SELLING ARRANGEMENTS AS PROVIDED FOR IN ARTICLE 14 OF REGULATION NO 805/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 187 ), AS AMENDED BY COUNCIL REGULATION NO 425/77 OF 14 FEBRUARY 1977 ( OFFICIAL JOURNAL L 61, P . 1 ), IN ITS JUDGMENT OF 6 MARCH 1979 IN CASE 92/78 (( 1979 ) ECR 777 ) FOUND IN FAVOUR OF THE APPLICANT BY DECLARING THE CONTESTED DECISION TO BE VOID .
4 IN PARAGRAPHS 108 TO 110 OF ITS DECISION IN THAT JUDGMENT THE COURT, HAVING DECIDED TO DECLARE THE CONTESTED DECISION TO BE VOID, NEVERTHELESS CONTINUED AS FOLLOWS :
CONSEQUENTLY THE COMMISSION, PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 176 OF THE EEC TREATY, HAS TO RECONSIDER THE PARTICULAR SITUATION OF THE APPLICANT AND ADOPT ANOTHER DECISION AFFECTING IT THROUGH THE COMPETENT INTERVENTION AGENCY .
IT WILL BE FOR THE COMMISSION TO ADOPT ITS DECISION WITH DUE REGARD TO THE GROUNDS OF THIS JUDGMENT AND ESPECIALLY AFTER TAKING ACCOUNT OF THE FACT THAT THE SYSTEM INTRODUCED BY THE NEW ARTICLE 14 OF REGULATION NO 805/68 MAY IN NO CIRCUMSTANCES HAVE THE EFFECT OF ENSURING THAT THE PROCESSING INDUSTRY BUYS INTERVENTION MEAT AT A PRICE LOWER THAN THE PRICE FOR REDUCING INTERVENTION AGENCY STOCKS USUALLY CHARGED AT THE RELEVANT TIME IN THE CASE OF MEAT OF THE QUALITIES IN QUESTION .
THEREFORE THE APPLICANT ' S TENDER SHOULD BE REJECTED IF IT APPEARS IT WAS BELOW THAT PRICE LEVEL .
5 THE COMMISSION, IN PURSUANCE OF THAT JUDGMENT, ADOPTED ON 19 APRIL 1979 A DECISION WORDED AS FOLLOWS :
' ' THE COMMISSION OF THE EUROPEAN COMMUNITIES
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY,
HAVING REGARD TO REGULATION ( EEC ) NO 805/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL, AS LAST AMENDED BY COUNCIL REGULATION ( EEC ) NO 425/77, AND IN PARTICULAR ARTICLES 7 ( 3 ) AND 14 ( 4 ) ( A ) THEREOF,
WHEREAS COMMISSION DECISION NO 78/258/EEC OF 15 FEBRUARY 1978 FIXED THE MINIMUM SELLING PRICES FOR FROZEN BEEF PUT UP FOR SALE BY THE INTERVENTION AGENCIES IN ACCORDANCE WITH REGULATION ( EEC ) NO 2900/77 AND SPECIFIED THE QUANTITIES OF FROZEN BEEF FOR PROCESSING WHICH MAY BE IMPORTED UNDER SPECIAL TERMS IN THE FIRST QUARTER OF 1978 ;
WHEREAS FOLLOWING AN APPLICATION FOR ANNULMENT LODGED BY A TENDERER WHOSE OFFER COULD NOT BE ACCEPTED, ON THE BASIS OF THE ABOVE-MENTIONED DECISION, THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES DECLARED THE DECISION IN QUESTION TO BE VOID IN SO FAR AS IT AFFECTED THE APPLICANT ;
WHEREAS CONSEQUENTLY THE COMMISSION HAS TO RECONSIDER THE APPLICANT ' S SITUATION AND ADOPT ANOTHER DECISION AFFECTING IT THROUGH THE COMPETENT INTERVENTION AGENCY ;
WHEREAS THE TENDER SUBMITTED BY THE UNDERTAKING IN QUESTION IN RESPONSE TO THE ABOVE-MENTIONED INVITATION TO TENDER WAS LOWER THAN THE PRICE FOR REDUCING INTERVENTION AGENCY STOCKS USUALLY CHARGED AT THE RELEVANT TIME FOR MEAT OF THE QUALITIES IN QUESTION ;
WHEREAS THAT TENDER MUST CONSEQUENTLY BE REJECTED ;
WHEREAS THE MEASURES PROVIDED FOR IN THIS DECISION ARE IN ACCORDANCE WITH THE OPINION OF THE MANAGEMENT COMMITTEE FOR BEEF AND VEAL,
HAS ADOPTED THIS DECISION
ARTICLE 1
1 . THE TENDER SUBMITTED BY SIMMENTHAL S.P.A . IN RESPONSE TO THE INVITATION TO TENDER REFERRED TO IN COMMISSION DECISION NO 78/258/EEC IS REJECTED .
2 . THE ITALIAN INTERVENTION AGENCY ( AIMA ) SHALL NOTIFY SIMMENTHAL S.P.A . OF THE CONTENTS OF THIS DECISION .
ARTICLE 2
THIS DECISION IS ADDRESSED TO THE ITALIAN REPUBLIC . ' '
6 SIMMENTHAL HAS NOT LODGED AN APPLICATION CHALLENGING THAT COMMISSION DECISION BUT HAS CONDUCTED PROCEEDINGS WITHIN THE FRAMEWORK OF THE PENDING APPLICATION CHALLENGING THE DECISION RELATING TO THE INVITATION TO TENDER FOR THE FOURTH QUARTER OF 1978 .
7 THE COMMISSION IN ITS DEFENCE LODGED ON 18 JUNE 1979 STATES THAT SIMMENTHAL ' S PROSECUTION OF ITS ACTION IS UNJUSTIFIED AND SERVES NO USEFUL PURPOSE SINCE THE AMOUNT OFFERED IN SIMMENTHAL ' S TENDER IN RESPONSE TO THE INVITATION TO TENDER FOR THE FOURTH QUARTER, BEING 950 UNITS OF ACCOUNT PER TONNE, MUST A FORTIORI LEAD TO THE REJECTION OF THAT TENDER . SINCE THE PRESENT APPLICATION IS, MOREOVER, ONLY A REPETITION OF THE APPLICATION CHALLENGING THE INVITATION TO TENDER FOR THE FIRST QUARTER, SIMMENTHAL CANNOT EXPECT TO DERIVE ANY FURTHER ADVANTAGE IN THE EVENT OF ITS BEING SUCCESSFUL . THE COURT THEREFORE HAS SUFFICIENT GROUNDS ON WHICH TO DECLARE THIS APPLICATION INADMISSIBLE .
8 THE APPLICANT IN ITS REPLY SUBMITS THAT THE ADMISSIBILITY OF AN ACTION MUST BE DETERMINED IN THE LIGHT OF THE FACTS AND THE LEGAL SITUATION AT THE MOMENT WHEN THAT ACTION WAS BROUGHT AND THAT IT IS IMPOSSIBLE TO ESTABLISH A CASE OF ' ' CONTINGENT ADMISSIBILITY ' '
DURING THE PROCEEDINGS . AS FAR AS THE SUBSTANCE OF THE PROBLEM IS CONCERNED, THE APPLICANT EXPLAINS THAT THE EXPRESSION ' ' PRICE FOR REDUCING INTERVENTION AGENCY STOCKS USUALLY CHARGED AT THE RELEVANT TIME ' '
LEAVES OPEN THE QUESTION OF THE PRICE LEVEL TO WHICH THE COURT INTENDED TO REFER . IN THE DECISION WHICH IT ADOPTED IN CONSEQUENCE OF THE JUDGMENT OF 6 MARCH 1979 THE COMMISSION TOOK AS THE PRICE USUALLY CHARGED FOR REDUCING INTERVENTION AGENCY STOCKS THE UNRESTRICTED PRICE FOR REDUCING SUCH STOCKS APPLIED IN THE CASE OF SALES OF FROZEN MEAT IN THE ABSENCE OF ANY CONDITION THAT THE MEAT PURCHASED SHOULD BE USED FOR A SPECIFIC PURPOSE . BUT IN THIS CASE, WHERE IT IS INTENDED THAT AN ADVANTAGE BE SECURED FOR THE PROCESSING INDUSTRY, THE PRICES CHARGED FOR REDUCING STOCKS OF MEAT INTENDED FOR SPECIFIC PURPOSES SHOULD BE TAKEN AS THE POINT OF REFERENCE . IN THIS CONNEXION THE APPLICANT MAKES SPECIAL REFERENCE TO THE PRICE OF 964 UNITS OF ACCOUNT PER TONNE CHARGED FOR REDUCING STOCKS FOR SOCIAL PURPOSES AND THE PRICE OF 950 UNITS OF ACCOUNT PER TONNE, WHICH CORRESPONDS PRECISELY TO THE LEVEL OF THE TENDER WHICH IT HAD SUBMITTED, CHARGED FOR REDUCING STOCKS FOR INDUSTRIAL PURPOSES .
9 THE COURT CONSIDERS THAT REASONING TO BE UNCONVINCING . TAKING INTO ACCOUNT THE PRIOR SITUATION OUTLINED ABOVE IT IS EVIDENT THAT THE APPLICANT, AS FROM THE DATE OF THE JUDGMENT OF 6 MARCH 1979, AND AT THE LATEST AS FROM THE DATE OF THE DECISION ADOPTED BY THE COMMISSION IN IMPLEMENTATION OF THAT JUDGMENT, NO LONGER HAD AN INTEREST IN PROSECUTING THE PROCEEDINGS WHICH IT HAD INSTITUTED AGAINST THE COMMISSION ' S DECISION RELATING TO THE INVITATION TO TENDER FOR THE FOURTH QUARTER OF 1978 . IN FACT FROM THAT TIME ONWARDS THE APPLICANT COULD FORESEE WITH CERTAINTY THAT ITS TENDER, LIKE THAT RELATING TO THE FIRST QUARTER, WOULD BE REJECTED IN VIEW OF THE PRINCIPLES LAID DOWN BY THE ABOVE-MENTIONED JUDGMENT OF THE COURT .
10 THE ISSUE RAISED BY THE APPLICANT CONCERNING THE MEANING OF THE EXPRESSION ' ' PRICE FOR REDUCING INTERVENTION AGENCY STOCKS USUALLY CHARGED AT THE RELEVANT TIME ' '
IS SPECIOUS, SINCE IN THE CONTEXT OF THE JUDGMENT OF 6 MARCH 1979 IT IS ABSOLUTELY CLEAR THAT THAT EXPRESSION REFERS TO THE PRICE WHICH BUYERS ARE USUALLY CHARGED IN THE ABSENCE OF ANY PARTICULAR INTENDED PURPOSE FOR THE MEAT CONCERNED . THE PRICES MENTIONED BY THE APPLICANT REFER TO WHOLLY EXCEPTIONAL TRANSACTIONS IN THAT THEY RELATE TO SALES OF MEAT FOR SOCIAL PURPOSES OR OF GOODS WHICH, AS THEY WERE COMING TO THE END OF THE PERIOD DURING WHICH THEIR FRESHNESS COULD BE GUARANTEED, WERE DISPOSED OF AT A PARTICULARLY FAVOURABLE PRICE . PRICES CHARGES WHEN EXCEPTIONAL TRANSACTIONS OF THIS KIND ARE CONCLUDED CANNOT BE TAKEN AS THE ' ' USUAL ' '
PRICES FOR REDUCING STOCKS .
11 IT IS THUS APPARENT THAT THE PROSECUTION BY THE APPLICANT OF ITS ACTION HAS BEEN AN ABUSE OF PROCESS FROM THE DATE WHEN THE JUDGMENT OF 6 MARCH 1979 WAS DELIVERED AND, AT THE LATEST, AS FROM THE DATE ON WHICH THE DECISION ADOPTED BY THE COMMISSION IN IMPLEMENTATION OF THAT JUDGMENT TOOK EFFECT . THE APPLICATION MUST THEREFORE BE DISMISSED AND THE APPLICANT BE ORDERED TO PAY THE WHOLE OF THE COSTS INCLUDING THE COSTS OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE APPLICANT TO PAY THE COSTS INCLUDING THE COSTS OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .