61990CJ0358_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-358/90,
Compagnia Italiana Alcool SAS di Mario Mariano & Co., a company incorporated under Italian law, having its registered office at Naples (Italy), represented by E.H. Pijnacker Hordijk, of the Amsterdam Bar, and H.J. Bronkhorst, a member of the Bar of the Hoge Raad der Nederlanden, with an address for service in Luxembourg at the Chambers of L. Frieden, 62 Avenue Guillaume,
applicant,
v
Commission of the European Communities, represented by C. Docksey, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of R. Hayder, representative of the Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION for the annulment of the Commission' s decision of 18 October 1990 not to award any contract pursuant to special tender procedure No 5/90 EC provided for by Commission Regulation (EEC) No 2575/90 of 5 September 1990 opening a special sale by tender of vinous alcohol held by intervention agencies, for use as motor fuel within the Community (OJ 1990 L 243, p. 22), and for compensation for the damage due to be suffered as a consequence of that decision and of the organization of special tender procedure No 7/90 EC provided for by Commission Regulation (EEC) No 3389/90 of 26 November 1990 opening a special sale by tender of vinous alcohol held by intervention agencies, for use as motor fuel within the Community (OJ 1990 L 327, p. 19),
THE COURT (Sixth Chamber),
composed of: F.A. Schockweiler, President of the Chamber, P.J.G. Kapteyn, G.F. Mancini, C.N. Kakouris and M. Diez de Velasco, Judges,
Advocate General: F.G. Jacobs,
Registrar: J.A. Pompe, Deputy Registrar,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 13 November 1991,
after hearing the Opinion of the Advocate General at the sitting on 16 January 1992,
gives the following
Judgment
Grounds
1 By application lodged at the Court Registry on 7 December 1990, the company Compagnia Italiana Alcool SAS di Mario Mariano & Co. (hereinafter "CIA") brought an action under Article 173 of the EEC Treaty for the annulment of the Commission' s decision of 18 October 1990 not to take action in respect of special tender procedure No 5/90 EC, provided for by Commission Regulation (EEC) No 2575/90 of 5 September 1990 opening a special sale by tender of vinous alcohol held by intervention agencies, for use as motor fuel within the Community (OJ 1990 L 243, p. 22) and, under Article 178 of the EEC Treaty, for compensation for the damage suffered as a result of that decision and of the sales made under special tender procedure No 7/90 EC provided for by Commission Regulation (EEC) No 3389/90 of 26 November 1990 opening a special sale by tender of vinous alcohol held by intervention agencies, for use as motor fuel within the Community (OJ 1990 L 327, p. 19).
2 Articles 35 and 36 of Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (OJ 1987 L 84, p. 1) concerns the distillation of certain wine products. Article 37 provides that the disposal of the products of such distillation which are held by the intervention agencies must not cause any disturbance of the market in alcohol and spirituous beverages produced in the Community and that, to this end, they are to be disposed of in other sectors, and in particular in the fuel sector, each time such disposal is likely to bring about such a disturbance.
3 Article 39 of Regulation No 822/87 deals with the compulsory distillation of table wine. In that regard, Article 40(3) provides that:
"Products taken over by the intervention agency or products derived from their processing shall be disposed of either by public auction or by a tendering procedure. They shall be disposed of in a manner which ensures that:
° the alcohol can be sold on the market in the normal way for the various uses,
° any disturbance of the markets in alcohol and spiritual beverages is avoided,
° equality of access to the merchandise and equality of treatment of prospective purchasers is guaranteed."
4 The general rules on the disposal of alcohol obtained from the distillation operations referred to in Articles 35, 36 and 39 of Regulation (EEC) No 822/87 and held by intervention agencies are laid down in Council Regulation (EEC) No 3877/88 of 12 December 1988 (OJ 1988 L 346, p. 7) and provide that those distillation products are to be disposed of in tender procedures.
5 According to Article 1(2) of Regulation No 3877/88, the conditions governing invitations to tender must ensure equality of treatment for all interested parties wherever they are established in the Community. Admission to tender procedures is, however, restricted by Article 1(4) to interested parties who have guaranteed compliance with their obligations by putting up a security.
6 Article 2 of the same regulation provides that the Commission may, in accordance with the Management Committee procedure provided for in Article 83 of Regulation No 822/87, either take action on the tenders received or take no action, for each tendering procedure, which may be subject to special conditions, particularly to avoid market disruptions.
7 Commission Regulation (EEC) No 1780/89 of 21 June 1989, laying down detailed rules for the disposal of alcohol obtained from the distillation operations referred to in Articles 35, 36 and 39 of Regulation No 822/87 and held by intervention agencies (OJ 1989 L 178, p. 1), provides for three types of invitation to tender for the disposal of such alcohol: standing invitations to tender, individual invitations to tender and special invitations to tender. Article 1(2) of the regulation defines an "invitation to tender" as the organization of a competition among interested parties in the form of a call for bids, the contract being awarded to the party submitting the most advantageous bid complying with the rules laid down in the regulation.
8 The fifth recital of the preamble to that regulation states in this regard that the objective of invitations to tender is to obtain the most favourable price, the contract having to be awarded to the tenderer offering the highest price where the Commission decides to take action in respect of tenders. According to the next recital, the Commission may also decide not to take action in respect of tenders received in order not to affect competition with products which the alcohol may replace.
9 Title III of Regulation No 1780/89 contains provisions relating to special invitations to tender. Each invitation to tender is to be published in the Official Journal of the European Communities. Notices issuing special invitations to tender are to state the conditions of tender and to fix a time-limit for the submission of tenders. Article 18 of Regulation No 1780/89 provides in this regard that each invitation to tender is to relate to two lots which are to be covered by one removal order and that tenders are to be invited for the price of the first lot, the price of the second lot being determined according to the price agreed for the first lot, as adjusted by a coefficient to be specified in the notice issuing the invitation to tender.
10 Article 23(1) of the regulation provides that within 15 working days of the last date for the submission of tenders the Commission may decide either to award a contract or to make no award.
11 If the Commission decides to award a contract, it must, according to Article 23(2) of Regulation No 1780/89, accept the highest tender. Article 24 of Regulation No 1780/89 provides that the successful tenderer is then to obtain, within the 20 days following receipt of the notification informing him of the decision taken on his tender, a statement of award from each of the intervention agencies concerned and provide at the same time proof that a performance guarantee has been lodged with that agency or those agencies to ensure that the alcohol constituting the first lot is in fact used for the purposes specified in the notice of invitation to tender.
12 Articles 25 to 28 of Regulation No 1780/89 concern the times and arrangements for the removal of the alcohol. According to Article 26(1), the removal of the second lot must not begin until after the removal of the first lot. Article 26(2) provides that before the second lot is removed successful tenderers are to provide proof that a performance guarantee relating to that lot has been lodged.
13 Considering that it was necessary to take account of the costs of the investments which must be made in processing plant for the use of vinous alcohol in the fuel sector within the Community, the Commission, by Regulation (EEC) No 2568/90 of 5 September 1990 (OJ 1990 L 243, p. 11), amended Regulation No 1780/89.
14 The amendments made by Regulation No 2568/90 concern, inter alia, Articles 24 and 26 of Regulation No 1780/89. The amended version of the second indent of Article 24(2) provides that the successful tenderer must provide proof that a performance guarantee has been lodged to ensure that the total quantity of alcohol for which a contract is awarded is in fact used for the purposes specified in the notice of invitation to tender unless the Commission has decided to replace such guarantee by the obligation for the successful tenderer to submit until final use to an inspection by an international surveillance firm as well as proof that a removal guarantee has been lodged to ensure that the alcohol constituting the first lot is removed within the time-limit stipulated. The Article 26, as amended, provides that the successful tenderer must also provide proof that the removal guarantee has been lodged in respect of the second lot before the removal of that lot, which may not take place before the first lot has been removed.
15 Those new provisions are both more stringent and more flexible than the original provisions. They are more stringent for two reasons: the performance guarantee must be provided in respect of the total quantity of alcohol for which a contract is awarded and the successful tenderer must provide additional guarantees for removal. On the other hand, are more flexible in that the performance guarantee may be replaced by surveillance.
16 On 5 September 1990, the Commission decided, by Regulation No 2575/90, cited above, and Regulation No 2576/90 (OJ 1990 L 243, p. 24), to open two special tendering procedures, numbered respectively 5/90 EC and 6/90 EC, for quantities of alcohol held by the French and Italian intervention agencies. Under those regulations, the performance guarantee is replaced by the obligation for the successful tenderer to submit to inspection by an international surveillance firm. The notices of invitation to tender published for procedures 5/90 EC and 6/90 EC (OJ 1990 C 224, p. 10 and p. 15) state that the removal guarantee for the first lots is to be fixed at ECU 40 per hectolitre of alcohol.
17 In procedure No 5/90 EC the Commission received a tender from CIA at ECU 4.52 per hectolitre. In procedure No 6/90 EC several tenders were submitted. CIA' s tender of ECU 4.40 per hectolitre was, however, invalid for that procedure since CIA had not observed the time-limit for the submission of tenders. The tenders submitted by the American company Union Carbide in the two tender procedures were invalid for the same reason.
18 On 18 October 1990, the Commission decided, in accordance with the opinion of the Management Committee for Wine, not to take action on the tenders received under special tender procedures Nos 5/90 EC and 6/90. That decision was taken in view of the offers received in respect of the first lots and taking into account the situation on the world market for fuel.
19 On 26 November 1990 the Commission decided, by Regulation (EEC) No 3389/90, cited above, and Regulation No 3390/90 (OJ 1990 L 327, p. 21), to organize a second set of special tender procedures for the same lots of alcohol as those which had been the subject of procedures Nos 5/90 EC and 6/90. The two new procedures were numbered 7/90 and 8/90 EC respectively.
20 Considering that, with a view to simplifying the system of guarantees required, a single performance guarantee should be required for the purpose of ensuring that the alcohol awarded was removed and put to the intended use, and considering that the prices to be paid for the alcohol awarded should follow more closely the fluctuation of fuel prices on international markets, the Commission, by Regulation (EEC) No 3391/90 of 26 November 1990 (OJ 1990 L 327, p. 23), made fresh amendments to the conditions relating to sales by special invitations to tender.
21 Those fresh amendments also concerned Articles 24 and 26 of Regulation No 1780/89. According to Article 24, as amended, the performance guarantee, which had to be provided in respect of the total quantity of alcohol awarded, might no longer be replaced by inspection by an international surveillance firm. On the other hand, the amended version of Article 26 no longer required the provision of a removal guarantee.
22 According to the notices of invitation to tender relating to procedures Nos 7/90 EC and 8/90 EC (OJ 1990 C 296, p. 9 and p. 14), the level of the performance guarantee was fixed at ECU 90 per hectolitre of alcohol for the total quantities put up for sale.
23 On 22 January 1991, the Commission decided to accept tenders of ECU 3 per hectolitre under each of the two procedures. The contract in procedure No 7/90 EC was awarded to the company IMA and the contract in procedure No 8/90 EC was awarded to the company Palma, a company belonging to the Palfin company, which is one of the parent undertakings of CIA. Under the latter procedure, the Commission had also received a tender from the other parent company of CIA. However, that tender was not valid. The company Union Carbide did not participate in either of the two tender procedures.
24 The first part of CIA' s application seeks the annulment of the Commission' s decision of 18 October 1990 not to accept the tender it submitted under special tender procedure No 5/90 EC. The second part of CIA' s application seeks compensation for the damage which it claims to have suffered as a result of that decision and the guarantee conditions laid down by the Commission for special tender procedure No 7/90 EC relating to the same lots of alcohol as procedure No 5/90 EC.
25 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
The claim for the annulment of the Commission' s decision of 18 October 1990
26 CIA contends that in taking its decision of 18 October 1990 the Commission acted arbitrarily since it exceeded the limits of the discretionary power conferred on it by Regulations Nos 822/87 and 3877/88, cited above, and that, in particular, it acted in breach of the principle of equal treatment laid down by those regulations. It points out that the tender it submitted under procedure No 5/90 EC fulfilled all the conditions laid down by the notice of invitation to tender and that there was therefore no reason not to accept it.
27 CIA believes that the Commission wished to award the tender in question to a predetermined undertaking, the American company Union Carbide. When it turned out, however, that the best bid had been submitted by CIA and not by Union Carbide, the Commission took the contested decision. CIA contends that the reasons which the Commission put forward during the procedure before the Court in order to disguise that discriminatory conduct are contradictory, unfounded and advanced too late.
28 The Commission, on the other hand, contends that its discretionary power allows it to decide on the action to be taken on a tender procedure by taking into account factual circumstances not mentioned in the conditions of tender. It states that in the present case it took into consideration in particular the unstable situation on the petroleum market due to the Gulf crisis, the necessity for the alcohol awarded to be used for the purposes envisaged and the fact that the effectiveness of the guarantee conditions published in respect of procedure No 5/90 EC would not be assured if the lots were awarded to CIA. As regards the last factor, the Commission points out that the liability of the parent companies with regard to CIA is limited.
29 The Commission considers that a decision taken on the basis of such objective criteria cannot be regarded as being contrary to the principle of equal treatment and that the identity of the tenderers did not influence that decision in any way. According to the Commission, its impartiality is, moreover, borne out by the fact that the lots of alcohol covered by procedure No 8/90 EC were awarded to the Palma group, which is controlled by one of CIA' s parent companies, and that those parent companies have generally been successful in other tender procedures organized by the Commission.
30 In assessing the legality of the contested decision, the first question to be considered is whether the Commission is entitled to take no action in respect of a special tender procedure where a tenderer not only submits the highest bid but also satisfies the guarantee conditions specified and published in the notice of invitation to tender relating to that procedure.
31 Regulation No 3877/88, cited above, imposes a duty on the Commission to ensure that the disposal of vinous alcohol does not disturb the markets in alcohol and spirituous beverages produced in the Community, or create additional difficulties which might arise in other sectors in which the product concerned is used, or affect competition with the products for which alcohol may serve as a substitute.
32 Article 2 of Regulation No 3877/88 therefore empowers the Commission either to take action on the tenders received or to take no action.
33 Article 23 of Regulation No 1780/89, cited above, lays down the manner in which that power is to be exercised. It is apparent from the second paragraph of that article that the Commission is obliged to accept the highest tender only where it has decided to take action on the tenders received.
34 It follows that the Commission may decide not to award a contract in respect of a special tender procedure in which valid tenders have been submitted when it considers that there is a risk of disturbance of the markets.
35 The next question to be examined is whether the Commission in reality wished to restrict the award of the lots of alcohol in question to a specific undertaking while putting forward economic considerations as the justification for its decision not to take action on the tenders received.
36 CIA has not adduced any evidence to prove that the Commission had decided in advance to award the lots of alcohol in special procedure No 5/90 EC only to a specific undertaking. Furthermore, the tenders received from Union Carbide under procedures Nos 5/90 EC and 6/90 EC were not valid, Union Carbide did not participate in procedures Nos 7/90 EC and 8/90 EC, the parent companies of CIA were regularly successful in other tender procedures and, moreover, it was the company Palma, which belongs to one of CIA' s parent companies, which was awarded the contract in procedure No 8/90 EC.
37 In those circumstances, it has not been established that in taking the contested decision of 18 October 1990 the Commission committed a misuse of powers.
38 CIA also contends that the contested decision does not fulfil the requirement to state reasons laid down in Article 190 of the EEC Treaty since the decision does not enable either CIA or the Court to verify whether the Commission took due account of the limits to its discretion. According to CIA, the decision gives no explanation as to why the award of contracts in question could lead to a disturbance of the market.
39 The Commission accepts that the statement of reasons in its decision is brief but claims that it satisfies the requirements of Article 190 of the EEC Treaty. In its view, the contested decision provides two reasons: the "offers received" and the "current situation on the world market in fuel", which, in the general context in which the decision was adopted, enabled CIA, as a specialized undertaking in the sector concerned, to discern clearly the reasons for the decision not to award a contract under procedure No 5/90 EC. In the alternative, the Commission contends that any incompleteness in reasoning in the present case does not constitute an infringement of essential procedural requirements.
40 As far as this issue is concerned, it must be observed first of all that the Court has consistently held that the statement of reasons required by Article 190 of the EEC Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority in such a way as to make the persons concerned aware of the reasons for the measure adopted and thus to enable them to defend their rights and the Court to exercise its supervisory jurisdiction. The Court has also consistently held that the requirement to state reasons must be assessed with regard not only to the wording of the measure in question but also to its context and to all the legal rules governing the matter in question.
41 As far as the wording of the contested decision is concerned, it is sufficient to point out that the references to the "offers received" and the "current situation on the world market in fuel" are mere factual observations, which, as such, are irrelevant, for there is always a situation on the world market in fuel and it is quite normal for the Commission to receive offers in its tender procedures.
42 As regards the general context in which the Commission adopted its decision, it is to be observed that Regulation No 3877/88 confers on the Commission a wide power for the assessment of complex economic situations and that when exercising that power it must take account of factors which may lead to disturbances of the market. Where the Commission has such latitude, it has a duty not only to identify the factors which influenced its decision but also to state their effect (see the judgment of the Court in Case C-269/90 Hauptzollamt Muenchen-Mitte v Technische Universitaet Muenchen [1991] ECR I-5469, at paragraph 27).
43 Secondly, special tender procedure No 5/90 EC concerned very large quantities of alcohol compared with previous special tender procedures and the tender submitted by CIA for that procedure fulfilled all the conditions of tender laid down by the Commission. In those circumstances, CIA had a legitimate interest in being informed in good and due form of the reasons which led the Commission to decide not to accept such a tender.
44 It follows from the foregoing considerations that the statement of reasons for the Commission' s decision of 18 October 1990 not to award a contract in respect of special tender procedure No 5/90 EC did not satisfy the requirements laid down in Article 190 of the EEC Treaty and that therefore the decision must be annulled.
The claim for damages
45 CIA considers that the decision not to award any contract in respect of procedure No 5/90 EC and the conditions which the Commission decided to apply in respect of procedure No 7/90 EC had the effect of depriving it for a long time of access to the market in alcohol sold from intervention for use in the fuel sector. It submits that the damage arising from its exclusion must be made good since all the conditions laid down by the Court with regard to the non-contractual liability of the Community are fulfilled.
46 According to the established case-law of the Court, those conditions are the incurrence of damage, the existence of a causal link between the damage relied on and the conduct alleged against the institutions, and the unlawful nature of that conduct. The question is whether those conditions are fulfilled in the present case, first of all as regards the decision of 18 October 1990 not to award a contract, and then as regards the guarantee conditions laid down by the Commission in special tender procedure No 7/90 EC.
47 As far as the decision of 18 October 1990 is concerned, it must be borne in mind that the illegality concerned arises only from the failure to fulfil the duty to provide an adequate statement of reasons laid down in Article 190 of the EEC Treaty. Regardless of the question whether illegality of that kind may render the Community liable, there is no causal link between the damage allegedly suffered by CIA and the deficient statement of reasons. If that deficiency had not existed, the damage allegedly suffered by CIA would have been the same.
48 As far as the guarantee conditions laid down for tender procedure No 7/90 EC are concerned, the question is whether the Commission acted unlawfully in laying down those conditions.
49 CIA argues that procedure No 7/90 EC concerned the same lots of alcohol as those subject to procedure No 5/90 EC. The invalidity of the decision not to award a contract under procedure No 5/90 EC would therefore automatically invalidate the decision to organize the subsequent procedure. CIA then contends that the conditions of tender for procedure No 7/90 EC and in particular the condition relating to a guarantee of ECU 90 per hectolitre are contrary to Regulation No 2568/90, cited above, and in particular to the fifth recital of the preamble thereto, which refers to the need for a lower guarantee. Finally, CIA claims that the conditions of tender laid down in procedure No 7/90 EC are not only disproportionate in relation to those laid down in previous procedures and in particular those governing procedure No 5/90 EC but are also contrary to Article 40(3) of Regulation No 822/87, cited above, and to Article 1(2) of Regulation No 3877/88, also cited above, because in practice they do not allow small and medium-sized undertakings to participate in the tender procedures concerned.
50 The Commission, on the other hand, considers that the stock of alcohol at its disposal enabled it to honour its obligations relating to procedure No 7/90 EC and to deliver the lots of alcohol concerned, even if, in the event of the annulment of the decision concerning procedure No 5/90 EC, it was obliged to sell the lots covered by the latter procedure. The Commission then explains that the new guarantee conditions were simpler and that they were laid down in order to take account of the market instability caused by the Gulf crisis. The Commission denies that those conditions were disproportionate in relation to the objectives pursued. It points out in this regard that the guarantee of ECU 90 was not substantially higher than the performance guarantee of ECU 80 required in 1986. Finally, the Commission contends that the guarantee conditions were certainly not impossible to meet by undertakings such as CIA, since that undertaking is controlled by two large groups which regularly undertake the distillation of large quantities of alcohol.
51 As regards the question of the legality of procedure No 7/90 EC, it is to be observed first of all that the question whether the annulment of the Commission' s decision of 18 October 1990 relating to procedure No 5/90 EC necessarily entails the nullity of procedure No 7/90 EC would arise only if the ground for annulment was that the Commission was under an obligation to award the lots covered by procedure No 5/90 EC to CIA. However, the decision in question is to be annulled solely on account of a formal defect consisting in the absence of a sufficient statement of reasons as required by Article 190 of the EEC Treaty.
52 The next question to be examined is whether the guarantee conditions laid down by the Commission for procedure No 7/90 EC were disproportionate in relation to the objectives pursued and contrary to the principle of equal treatment as defined in Article 40(3) of Regulation No 822/87, cited above, and in Article 1(2) of Regulation No 3877/88, cited above.
53 In this regard, it should be borne in mind that the Commission must prevent the disposal of vinous alcohol from disturbing the markets. The Commission must therefore act with caution and organize tender procedures in such a way that no such disturbances occur. It follows that the laying down of strict guarantees should normally be an indication that the Commission is carrying out its duty properly.
54 Such guarantee conditions necessarily mean that undertakings not in a position to meet them are shut out. Such an effect, which is inherent in any guarantee condition, does not constitute a breach of the principle of equal treatment on which the applicant may relay.
55 It is true that the guarantee of ECU 90 per hectolitre required in procedure No 7/90 EC for all the alcohol put up for sale represented a considerable financial obstacle to participation by interested undertakings. Nevertheless, it was not an insurmountable obstacle. Furthermore, the amount of ECU 90 per hectolitre was not disproportionate compared with the amount of ECU 80 per hectolitre required under the tender procedures conducted in 1986 whilst the possibility of requiring a single guarantee for all the lots put up for sale was already provided for in Regulation No 2568/90, cited above.
56 Consequently, the guarantee conditions laid down in procedure No 7/90 EC have not been proved to be discriminatory or disproportionate. The Commission did not therefore act illegally in organizing that procedure and selling the lots of alcohol put up for sale.
57 That part of CIA' s application which relates to compensation for the damage which it claims to have suffered must therefore be dismissed.
58 It follows from all the foregoing considerations that the Commission' s decision of 18 October 1990 relating to the sale of alcohol under special tender procedure No 5/9 EC must be annulled and the rest of the application dismissed.
Decision on costs
Costs
59 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission has failed in all essential aspects of its case, it must be ordered to pay the costs.
Operative part
On those grounds,
THE COURT (Sixth Chamber)
hereby:
1. Annuls the Commission' s decision of 18 October 1990 relating to the sale of alcohol by special tender procedure No 5/90 EC;
2. For the rest, dismisses the application;
3. Orders the Commission of the European Communities to pay the costs.