61979CJ0076_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 76/79
KARL KONECKE FLEISCHWARENFABRIK GMBH & CO . KG, A MEAT-PROCESSING UNDERTAKING HAVING ITS REGISTERED OFFICE IN BREMEN, FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY KLAUS LANDRY, RECHTSANWALT, HAMBURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JEANNE JANSEN-HOUSSE, HUISSIER DE JUSTICE, 23 RUE ALDRINGEN,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIANLUIGI CAMPOGRANDE, ACTING AS AGENT, ASSISTED BY JORN SACK, A MEMBER OF THE LEGAL DEPARTMENT, 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 79/187 OF 30 JANUARY 1979 FIXING THE MINIMUM SELLING PRICES FOR FROZEN BEEF PUT UP FOR SALE BY THE INTERVENTION AGENCIES IN ACCORDANCE WITH REGULATION NO 2900/77 AND SPECIFYING THE QUANTITIES OF FROZEN BEEF FOR PROCESSING WHICH MAY BE IMPORTED UNDER SPECIAL TERMS IN THE FIRST QUARTER OF 1979 ( OFFICIAL JOURNAL 1979, NO L 41, P . 49 )
Grounds
1 IN AN APPLICATION LODGED ON 7 MAY 1979 UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY THE APPLICANT CLAIMS THE ANNULMENT OF COMMISSION DECISION NO 79/187 OF 30 JANUARY 1979 FIXING THE MINIMUM SELLING PRICES FOR FROZEN BEEF PUT UP FOR SALE BY THE INTERVENTION AGENCIES IN ACCORDANCE WITH REGULATION NO 2900/77 AND SPECIFYING THE QUANTITIES OF FROZEN BEEF FOR PROCESSING WHICH MAY BE IMPORTED UNDER SPECIAL TERMS IN THE FIRST QUARTER OF 1979 ( OFFICIAL JOURNAL 1979, NO L 41, P . 49 ).
2 IT IS NOT IN DISPUTE THAT THE APPLICANT, IN RESPONSE TO NOTICE OF INVITATION TO TENDER NO D P 5, PUBLISHED IN THE OFFICIAL JOURNAL OF 23 DECEMBER 1978 ( NO C 308, P . 29 ) SUBMITTED FIVE TENDERS EACH FOR 20 TONNES THE FIRST OF WHICH CONCERNED A QUANTITY OF MEAT STORED IN THE FEDERAL REPUBLIC OF GERMANY AND THE OTHER FOUR A QUANTITY OF MEAT STORED IN DENMARK . BY A LETTER FROM THE GERMAN INTERVENTION AGENCY, THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG, OF 29 JANUARY 1979 THE APPLICANT WAS NOTIFIED THAT, FOLLOWING A DECISION OF THE MANAGEMENT COMMITTEE FOR BEEF AND VEAL, ITS TENDER WAS NOT ACCEPTED .
3 THE INFORMATION PROVIDED IN THE COURSE OF THE PROCEDURE SHOWS THAT IN FACT ONLY THE FIRST OF THE SAID TENDERS WAS DULY TRANSMITTED TO THE COMMISSION ; ON THE OTHER HAND THE FOUR TENDERS CONCERNING THE MEAT STORED IN DENMARK WERE PLACED BY THE GERMAN INTERVENTION AGENCY AMONGST THE TENDERS FOR THE MEAT STORED IN GERMANY SO THAT THEY COULD NOT BE TAKEN INTO CONSIDERATION BY THE COMMISSION IN FIXING THE MINIMUM PRICE APPLICABLE TO THE SALE OF THE MEAT STORED IN DENMARK . WITH REGARD TO THE TENDER DULY TAKEN INTO CONSIDERATION BY THE COMMISSION, THIS WAS REJECTED BECAUSE THE PRICE OFFERED BY THE APPLICANT WAS LOWER THAN THE MINIMUM PRICE ADOPTED FOR THE CORRESPONDING QUANTITY OF MEAT . THE LIST WHICH FORMS THE BASIS OF THE DECISION IN DISPUTE SHOWS THAT THE QUANTITY OF MEAT FOR WHICH THE APPLICANT SUBMITTED ITS TENDER BROUGHT IN 76 TENDERS IN ALL OF WHICH THE 35 HIGHEST WERE ACCEPTED, THE MINIMUM PRICE BEING 1 831 UNITS OF ACCOUNT PER TONNE ; THE TENDER OF THE APPLICANT CAME 71ST WITH A TENDER PRICE OF 1 687 UNITS OF ACCOUNT PER TONNE .
4 THE APPLICANT CONSIDERS THAT THE DECISION AT ISSUE IS VITIATED BY THE SAME DEFECTS AS TO THE LAW AS THE DECISION ANNULLED BY THE COURT IN ITS JUDGMENT OF 6 MARCH 1979 IN CASE 92/78, ON THE CLAIM BY S.P.A ., SIMMENTHAL ( 1979 ) ECR 777 AND ACCORDINGLY CLAIMS THAT IT SHOULD BE ANNULLED . IN ORDER TO AVOID REPETITION THE APPLICANT REFERS TO THE ARGUMENTS SUBMITTED BY SIMMENTHAL IN CASE 92/78 AND TO THE GROUNDS ON WHICH THAT JUDGMENT IS BASED .
5 THE COMMISION PUTS FORWARD AGAINST THIS CLAIM A SERIES OF SUBMISSIONS RELATING BOTH TO THE ADMISSIBILITY AND THE SUBSTANCE OF THE APPLICATION .
ADMISSIBILITY
6 SINCE THE COMMISSION IS OF THE VIEW THAT THE CONTESTED DECISION TOOK EFFECT WITH REGARD TO THE APPLICANT BY WAY OF THE NOTIFICATION WHICH THE LATTER RECEIVED THROUGH THE MEDIUM OF THE GERMAN INTERVENTION AGENCY ON 29 JANUARY 1979, IT CONSIDERS THAT THE APPLICATION WAS LODGED AFTER THE EXPIRY OF THE PERIOD LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 173 . THE APPLICANT ON THE OTHER HAND CONSIDERS THAT ITS APPLICATION WAS LODGED WITHIN THE PRESCRIBED PERIOD WHICH BEGAN TO RUN WITH THE PUBLICATION OF THE DECISION AT ISSUE IN THE OFFICIAL JOURNAL OF 16 FEBRUARY 1979 .
7 THE OBJECTION ADVANCED BY THE COMMISSION THAT THE APPLICATION IS OUT OF TIME MUST BE DISMISSED . IN FACT THE APPLICATION IS AGAINST DECISION NO 79/187 OF THE COMMISSION WHICH IS DATED 30 JANUARY 1979 . THE COMMUNICATION WHICH THE GERMAN INTERVENTION AGENCY ADDRESSED TO THE APPLICANT ON THE BASIS OF INFORMATION OBTAINED FROM THE MANAGEMENT COMMITTEE FOR BEEF AND VEAL ONE DAY BEFORE THE DECISION WAS ADOPTED CANNOT BE CONSIDERED AS A NOTIFICATION OF THE DECISION ITSELF . THAT COMMUNICATION DOES NOT IN FACT CONTAIN ANY DETAILS, APART FROM THE REJECTION OF THE TENDER, WHICH WOULD HAVE PERMITTED THE APPLICANT TO IDENTIFY THE DECISION TAKEN AND TO ASCERTAIN ITS PRECISE CONTENT IN SUCH A WAY AS TO ENABLE IT TO EXERCISE ITS RIGHT TO INSTITUTE PROCEEDINGS . SINCE THE CONTESTED DECISION WAS PUBLISHED IN THE OFFICIAL JOURNAL OF 16 FEBRUARY 1979 THE PROVISIONS OF ARTICLE 81 OF THE RULES OF PROCEDURE INDICATE THAT THE APPLICATION WAS LODGED WITHIN THE TIME-LIMIT .
8 SECONDLY THE COMMISSION CLAIMS THAT THE APPLICANT DOES NOT HAVE A LEGAL INTEREST IN TAKING PROCEEDINGS SINCE ITS APPLICATION CANNOT BE OF ANY PRACTICAL AVAIL . IN FACT SINCE THE TENDERING PROCEDURE IS DEFINITIVELY CONCLUDED IT IS IMPOSSIBLE FOR THE COMMISSION TO MEET THE APPLICANT ' S CLAIMS EVEN IF IT IS SUCCESSFUL IN ITS ACTION .
9 IN RAISING THAT OBJECTION THE COMMISION IS IN BREACH OF ITS OBLIGATION UNDER ARTICLE 176 OF THE TREATY WHEN ONE OF ITS ACTS HAS BEEN DECLARED VOID . ACCORDING TO THAT PROVISION THE INSTITUTION WHOSE ACT HAS BEEN DECLARED VOID ' ' SHALL BE REQUIRED TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT OF JUSTICE ' ' . EVEN IF IN THE CIRCUMSTANCES IT PROVES IMPOSSIBLE TO FULFIL THAT OBLIGATION THE APPLICATION FOR ANNULMENT STILL CONSTITUTES AN INTEREST AS THE BASIS FOR POSSIBLE PROCEEDINGS FOR DAMAGES .
10 FINALLY THE COMMISSION CONSIDERS THAT THE APPLICATION IS DEVOID OF PURPOSE WITH REGARD TO THE FOUR TENDERS FOR MEAT STORED IN DENMARK . SINCE THE GERMAN INTERVENTION AGENCY FAILED DULY TO COMMUNICATE THOSE TENDERS TO THE COMMISSION THEY WERE NOT INCLUDED IN THE CONTESTED DECISION ; ACCORDINGLY THE ONLY MATTER AT ISSUE IS THE FIRST TENDER OF THE APPLICANT FOR THE MEAT STORED IN THE FEDERAL REPUBLIC OF GERMANY .
11 THAT OBJECTION BY THE COMMISSION CANNOT BE UPHELD AND MOREOVER IT MATTERS LITTLE WHETHER IT CONCERNS THE ADMISSIBILITY OF THE APPLICATION OR ITS SUBSTANCE . THE FIVE TENDERS WERE DULY SUBMITTED BY THE APPLICANT TO THE COMPETENT INTERVENTION AGENCY . THE APPLICANT CANNOT ACCORDINGLY BE HELD RESPONSIBLE FOR THE CONSEQUENCES OF AN ERROR IN TRANSMISSION WHICH OCCURRED IN BETWEEN THE INTERVENTION AGENCY AND THE COMMISSION . ALL THE TENDERS SUBMITTED BY THE APPLICANT MUST THUS BE CONSIDERED AS FALLING WITHIN THE AMBIT OF THE CONTESTED DECISION AND OF THIS APPLICATION .
SUBSTANCE
12 COMMISSION DECISION NO 79/187 IS FROM THE LEGAL POINT OF VIEW IDENTICAL IN ALL RESPECTS WITH DECISION NO 78/258 WHICH FORMS THE SUBJECT-MATTER OF THE JUDGMENT OF 6 MARCH 1979 . FOR THE REASONS STATED IN THAT JUDGMENT DECISION NO 79/187 MUST THUS BE ANNULLED ALTHOUGH SUCH ANNULMENT EXTENDS ONLY THE INDIVIDUAL DECISION REJECTING THE TENDER WHICH FOLLOWED, AS REGARDS THE
APPLICANT AND SO FAR AS THE FIVE TENDERS IN QUESTION ARE CONCERNED, FROM THE CONTESTED DECISION .
13 IT IS CONSEQUENTLY FOR THE COMMISSION, PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 176 OF THE TREATY, TO REVIEW THE INDIVIDUAL SITUATION OF THE APPLICANT AND, THROUGH THE COMPETENT INTERVENTION AGENCY, TO TAKE A FRESH DECISION IN ITS CASE .
14 AS THE COMMISSION HAS STATED IT IS PARTICULARLY DIFFICULT TO RECTIFY THE POSITION OF THE APPLICANT IN THIS CASE SINCE, UNLIKE THE SITUATION IN WHICH THE COURT DELIVERED ITS JUDGMENT OF 6 MARCH 1979 IN CASE 92/78, THE APPLICANT ' S TENDERS WERE HIGHER THAN THE PRICE ON RELEASE FROM STORAGE NORMALLY PREVAILING AT THE TIME IN QUESTION . IN ITS JUDGMENT OF 6 MARCH 1979 THE COURT OF JUSTICE EMPHASIZED THAT THE SYSTEM INTRODUCED BY THE NEW ARTICLE 14 OF REGULATION NO 805/68 MAY IN NO CIRCUMSTANCES HAVE THE EFFECT OF ENSURING THAT THE PROCESSING INDUSTRY BUYS INTERVENTION MEAT AT A PRICE LOWER THAN THE PRICE FOR REDUCING INTERVENTION AGENCY STOCKS USUALLY CHARGED AT THE RELEVANT TIME ; THIS DOES NOT MEAN THAT A TENDER EQUAL TO OR HIGHER THAN THE USUAL PRICE FOR REDUCING INTERVENTION AGENCY STOCKS AUTOMATICALLY ENSURES THAT THE TENDERER IS COVERED BY THE SPECIAL ARRANGEMENTS SET UP BY THE SAID PROVISION .
15 THE COMMISSION MUST ACCORDINGLY APPRAISE FIRST WHETHER, WITHIN THE FRAMEWORK OF TENDERING ARRANGEMENTS WHICH SHOULD HAVE BEEN IN ACCORDANCE WITH THE LEGAL REQUIREMENTS SET OUT IN THE JUDGMENT OF 6 MARCH 1979, THE APPLICANT ' S TENDERS COULD COME WITHIN RANGE . IF THE COMMISSION CONSIDERS THAT SUCH WAS THE CASE, THEN BY VIRTUE OF ARTICLE 176 OF THE TREATY IT WILL NEED, AS RESPECTS THE APPLICANT, HAVING DUE REGARD TO THE BASIC PRINCIPLES AT PRESENT APPLICABLE TO THE MANAGEMENT OF THE MARKET IN BEEF AND VEAL, TO TAKE SUCH DECISION AS WILL PROVIDE DUE COMPENSATION FOR THE DAMAGE WHICH THE APPLICANT HAS SUFFERED AS A RESULT OF THE DECISION WHICH HAS BEEN ANNULLED .
Decision on costs
16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
17 SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY RULES :
1 . COMMISSION DECISION NO 79/187 OF 30 JANUARY 1979 FIXING THE MINIMUM SELLING PRICES FOR FROZEN BEEF PUT UP FOR SALE BY THE INTERVENTION AGENCIES IN ACCORDANCE WITH REGULATION NO 2900/77 AND SPECIFYING THE QUANTITIES OF FROZEN BEEF FOR PROCESSING WHICH MAY BE IMPORTED UNDER SPECIAL TERMS IN THE FIRST QUARTER OF 1979 IS ANNULLED IN SO FAR AS IT CONCERNS THE APPLICANT .
2 . THE COMMISSION IS ORDERED TO PAY THE COSTS .