62003TO0265_EN
Parties
Grounds
Operative part
Parties
In Case T-265/03,
Helm Düngemittel GmbH,
established in Hamburg (Germany), represented by W. Waschmann, lawyer,
applicant,
v
Commission of the European Communities,
represented by G. Berscheid and Niejahr, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for the annulment of the decision allegedly contained in a letter from the Commission of 23 May 2003 concerning the seizure of part of the delivery guarantee provided by the applicant on grounds of delay in the delivery of fertilisers supplied as part of a food aid action for the benefit of North Korea carried out pursuant to Commission Regulation (EC) No 2519/97 of 16 December 1997 laying down general rules for the mobilisation of products to be supplied under Council Regulation (EC) No 1292/96 as Community food aid (OJ 1997 L 346, p. 23),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges,
Registrar: H. Jung,
makes the following
Order
Grounds
Legal context
1. Article 10 of Commission Regulation (EC) No 2519/97 of 16 December 1997 laying down general rules for the mobilisation of products to be supplied under Council Regulation (EC) No 1292/96 as Community food aid (OJ 1997 L 346, p. 23) provides:
‘1. The supplier shall perform his obligations in accordance with the conditions laid down in the tender notice as well as his responsibilities under this Regulation, including those arising from his tender.
The supplier shall be deemed to be acquainted with all applicable general and special conditions and to have accepted them.
2. In order to ensure that he meets his obligations, the supplier shall lodge a delivery guarantee with the Commission within 10 working days of notification of the award of the contract. …’
2	According to Article 18 of Regulation No 2519/97 relating to terms of payment and release of guarantees:
‘1. The sum to be paid to the supplier shall not exceed the amount of the tender plus any costs provided for in Article 19, less any reduction provided for in paragraph 3, sums forfeit as provided for in Article 22(8), additional costs relating to checking mentioned in Articles 12 to 16 or costs resulting from the measures mentioned in Article 13(4).
…
5. The sum to be paid shall be payable at the supplier’s request submitted in duplicate.
A request for payment of the full tender amount or balance thereof shall be accompanied by the following documents:
(a) an invoice for the sum claimed;
(b) the original of the taking-over certificate or the delivery certificate;
(c) a copy of the final certificate of conformity.
…’
3	Article 22 of Regulation No 2519/97 provides as follows:
‘4. Except in cases of force majeure, the delivery guarantee shall be partially forfeit on a cumulative basis in the following cases, without prejudice to paragraph 8:
…
(c) 0.2% of the value of the quantities supplied after the deadline, per day of delay or, where appropriate, and only if this is specified in the tender notice, 0.1% per day where they are delivered prematurely.
The amounts shall not be forfeit in accordance with points (a) and (c) if the failures found are not attributable to the supplier.
…
8. The Commission shall deduct the amount of the guarantees to be forfeit in accordance with paragraphs 4, 5 and 6 from the final amount to be paid. The delivery guarantee or guarantee in respect of the advance shall then be released simultaneously in full.’
4	According to Article 23 of Regulation No 2519/97:
‘It shall be for the Commission to decide whether the supplier’s failure to supply the goods or to fulfil one of his obligations may be due to force majeure.
Costs resulting from a case of force majeure recognised by the Commission shall be borne by the Commission.’
5	Article 24 of Regulation No 2519/97 provides:
‘The Court of Justice of the European Communities shall be competent to resolve any dispute resulting from the implementation or the non-implementation or from the interpretation of the rules governing supply operations carried out in accordance with this Regulation.’
6	Article 25 of Regulation No 2519/97 provides:
‘For any matters not governed by this Regulation, Belgian law shall apply.’
Facts
7	On 30 March 2001, the Commission published a call for tenders for the delivery of chemical fertiliser (urea 46% N) to North Korea under reference EUROPAID/112402/C/S/KP. The time-limit for delivery was set at 18 May 2001 at the latest.
8	On 17 April 2001, the applicant submitted its tender to the Commission, in which it proposed procuring 30 398 million tonnes of urea in China.
9	On 18 April 2001, the Commission awarded the contract to the applicant, which ordered the 30 398 million tonnes from China on 24 April 2001.
10	On 25 April 2001, the applicant informed the Commission that it could only procure 10 000 million tonnes of urea in China and proposed obtaining the remaining 20 398 million tonnes in Egypt.
11	By letter of 27 April 2001, the Commission accepted the applicant’s proposal, while observing that the contractual time-limit for delivering the 30 398 million tonnes of urea had to be complied with.
12	On 14 May 2001, the applicant informed the Commission that it was not possible to deliver the urea from China by the time-limit laid down and requested an extension of the period for delivery. Moreover, as regards the quantities from Egypt, the applicant further informed the Commission that it was unable to deliver them by the time-limit laid down and that it would provide a delivery date to the Commission as soon as possible.
13	In brief, the quantity of urea from China was delivered 16 days late and that from Egypt was delivered 44 days late.
14	On 2 August 2001, the inspection body Bureau Veritas issued the final certificate of conformity required by Article 18(5) of Regulation No 2519/97. That certificate stated the date of delivery of the urea from China (3 June 2001) and the date of delivery of the urea from Egypt (1 July 2001). It also stated as follows in conclusion:
‘This supply conforms to EC specifications on the day of inspection, other than the differences as regards the delivery date and quality noted and referred to below.’
15	On 6 August 2001, the applicant submitted its request to the Commission for payment of the full sum of EUR 4 999 863.04, without taking account of the fact that the period for delivery had been exceeded.
16	The Commission effected a seizure of 0.2 % of the value of each of the quantities delivered after the time-limit, per day of delay. The amount of the payment requested by the applicant was accordingly reduced by EUR
346 221.20  (EUR 53 581 for the 16 days’ delay in supplying the 10 180 million tonnes of urea from China and EUR 292 640.20 for the 44 days’ delay in supplying the 20 218 million tonnes of urea from Egypt). At the beginning of October 2001, the difference was paid to the applicant.
17	By fax of 1 November 2001, the applicant requested that the Commission reimburse the sum seized on the grounds that the time-limit was exceeded for reasons which constituted a case of force majeure.
18	By fax of 21 December 2001, the Commission refused the applicant’s request.
19	By letter of 22 March 2002, the applicant requested that the Commission reconsider its decision and pay the sum requested. By letter of 16 September 2002, the Commission reiterated its refusal.
20	By letter of 25 October 2002, the applicant again requested that the Commission pay the sum at issue.
21	By letter of 23 May 2003 (‘the contested measure’), the Commission maintained its original position and refused the applicant’s request.
Procedure and forms of order sought
22	The applicant brought the present action by application received by the Registry of the Court of First Instance on 23 July 2003.
23	By letter of 20 December 2004, the Court put a written question to the applicant as a measure of organisation of procedure provided for in Article 64 of the Rules of Procedure of the Court of First Instance. In that letter, it invited the applicant to clarify its position as regards certain observations by the Commission concerning the admissibility of this action.
24	The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
25	The Commission contends that the Court should:
– declare the action to be inadmissible;
– in the alternative, dismiss it as unfounded;
– order the applicant to pay the costs.
26	In its reply to the question put by the Court, the applicant made an alternative claim seeking an order that the Commission pay the sum of EUR 346 221.20, exclusive of interest payable under Article 18(7) of Regulation No 2519/97, and referred, in this regard, to all the pleas of fact and law raised in connection with its request and its reply.
Admissibility
27	Under Article 113 of the Rules of Procedure, the Court, giving its decision in accordance with Article 114(3) and (4), may at any time, even of its own motion, consider whether there exists any absolute bar to proceeding with an action, including the conditions governing the admissibility of an action which are laid down in the fourth paragraph of Article 230 EC (orders in Case T‑12/96 Area Cova and Others v Council and Commission
[1999] ECR II‑2301, paragraph 21, and Case T‑29/03 Comunidad Autónoma de Andalucía v Commission
[2004] ECR I-2923, paragraph 22). Article 114(3) of the Rules of Procedure provides that, unless the Court otherwise decides, the remainder of the proceedings are to be oral.
28	In the present case, the Court considers that it has sufficient information from the documents before it and will therefore give its decision without opening the oral procedure.
Arguments of the parties
29	The Commission submits that the action is inadmissible on the ground that the letter of 23 May 2003 is not a measure open to challenge under the fourth paragraph of Article 230 EC.
30	The Commission considers that the contested measure constitutes a measure which is purely contractual in nature and not a unilateral decision under Article 249 EC against which an action for annulment may lie under the fourth paragraph of Article 230 EC (orders in Case T‑186/96 Mutual Aid Administration Services v Commission
[1997] ECR II‑1633, paragraphs 49 to 51; Case T‑149/00 Innova v Commission
[2001] ECR II‑1, paragraph 28; and Case T‑85/01 IAMA Consulting
v Commission
[2003] ECR I-4973).
31	In this respect the Commission contends that in accordance with the arbitration provision contained in Article 24 of Regulation No 2519/97 the applicant should have brought an action for payment of the sum of EUR 346 221.20 held by the Commission in order to obtain an enforceable judgment under Articles 244 EC and 256 EC.
32	In the alternative, the Commission argues that, in any event, the contested measure does not constitute a challengeable measure for the purposes of the fourth paragraph of Article 230 EC, since it is a measure confirming an earlier measure which was not challenged within the prescribed period.
33	Furthermore, the Commission submits that the new claim made in the alternative by the applicant in its reply to the written question put by the Court is inadmissible. In its view, this new claim is out of time and therefore inadmissible.
34	In the applicant’s view, its action is admissible because the letter of 23 May 2003 does constitute a measure open to challenge for the purposes of the fourth paragraph of Article 230 EC.
35	In this regard, it contends that the contractual nature of the relationship between the Commission and the applicant does not preclude an action for annulment (Case C‑172/89 Vandemoortele v Commission
[1990] ECR I‑4677, and Case C‑226/89 Haniel Spedition v Commission
[1991] ECR I‑1599).
36	Furthermore, in the applicant’s view, there is no need to bring an action for payment, since compliance with any judgment given by the court granting its claim for annulment would involve an obligation on the part of the Commission to reimburse the sum seized by it.
37	The applicant notes that, contrary to the situation which gave rise to the orders in Mutual Aid Administration Services
v Commission
and Innova
v Commission
(see paragraph 30 above), in this case Article 24 of Regulation No 2519/97 expressly provides that the Community courts are to have jurisdiction.
Findings of the Court
38	It should be noted that it has repeatedly been held that Article 230 EC gives the Community courts exclusive jurisdiction to review the legality of the measures referred to by Article 249 EC, which the institutions must adopt under the conditions laid down by the Treaty (see order in Joined Cases T‑314/03 and T‑378/03 Musée Grévin v Commission
[2004] ECR I-1421, paragraph 63, and the case-law cited therein).
39	Measures adopted by the institutions which form part of a purely contractual framework, from which they cannot be separated, are not by their very nature, measures referred to by Article 249 EC (order in Case T‑387/00, Comitato organizzatore del convegno internazionale v Commission
[2002] ECR II‑3031, paragraph 39; IAMA Consulting
v Commission, cited at paragraph 30 above, paragraph 53; and Musée Grévin v Commission, cited at paragraph 38 above, paragraph 64).
40	It is clear from the case-law that under the combined provisions of Article 225 EC and Article 238 EC the Court of First Instance does not have jurisdiction to give judgment in disputes relating to contractual matters brought before it by natural or legal persons unless there is an arbitration clause to that effect. If it were otherwise, the Court would be extending its jurisdiction beyond the limits placed by Article 240 EC on the disputes of which it may take cognisance, since that article leaves to national courts or tribunals ordinary jurisdiction over the other disputes to which the Community is a party (see order in Musée Grévin v Commission, cited at paragraph 38 above, paragraph 65, and the case-law cited therein).
41	Having regard to the considerations referred to above, it is necessary to consider whether, in the present case, the contested measure constitutes a measure of a contractual nature.
42	In this respect, it should be observed in the first place that, according to the Community legislation concerning food-aid policy and food-aid management, such aid is provided on the basis of contractual undertakings (Case C‑142/91 Cebag
v Commission
[1993] ECR I‑553, paragraph 11). Under Article 24(1)(b) of Council Regulation (EC) No 1292/96 of 27 June 1996 on food-aid policy and food-aid management and special operations in support of food security (OJ 1996 L 166, p. 1), the Commission is to lay down ‘the conditions governing the supply and implementation of aid, in particular:
– the general conditions applicable to recipients,
– initiation of the procedures governing mobilisation, supply of products and implementation of other measures, and conclusion of the relevant contracts.’
43	In this case, the Court notes that Regulation No 2519/97 lays down general rules for the mobilisation of products to be supplied as part of a Community food aid action and, in particular, rules governing supply operations, contract award procedures, the sections to be included in the tender notice, and the rights and obligations of the supplier. The detailed rules under which a particular mobilisation of products is to be carried out, such as those relating to the products to be mobilised and the quality and quantity thereof, and the price or the supply deadline are to be laid down in the tender notice.
44	As is clear from the file, the Commission made a call for tenders with a view to carrying out a food aid action for the benefit of North Korea consisting in the supply of a specified quantity of fertiliser. After presenting its tender, the applicant was awarded the supply contract, which it agreed to perform on the terms set out in the tender notice and Regulation No 2519/97.
45	Consequently, as a result of the call for tenders made by the Commission and the acceptance of the supply contract in question by the applicant, the provisions of Regulation No 2519/97 and the terms of the tender notice became clauses of a supply contract binding the two parties to this dispute.
46	Moreover, the contractual nature of the relationship between the parties is also clear from Article 24 of Regulation No 2519/97, which grants the Court exclusive jurisdiction to resolve any dispute resulting from the implementation or the non-implementation or from the interpretation of that rules governing supply operations carried out in accordance with that regulation. This provision must be regarded as an arbitration clause within the meaning of Article 238 EC (Case T‑26/00 Lecureur
v Commission
[2001] ECR II‑2623, paragraph 39).
47	In addition, the present dispute is contractual in nature, since the seizure at issue was, as, moreover, the applicant accepts, effected pursuant to Article 22(4) of Regulation No 2519/97, which formed part of the clauses of the contract governing the relationship between the parties.
48	The contested measure relating to the seizure of an amount of EUR 346 221.20 constitutes a sanction for non-fulfilment of one of the applicant’s contractual obligations and, in particular, the delay in delivering the products to be supplied.
49	In this regard, it has been held that a decision in which the Commission refused to pay in full the transport costs claimed by the applicant constitutes a measure of a contractual nature, since it cannot be severed from the Commission’s obligation to pay the carrier the price representing the consideration for the transport operations carried out (order in Mutual Aid Administration Services v Commission, cited at paragraph 30 above, paragraph 49).
50	Similarly, it must be held in this case that the contested measure cannot be severed from the contractual relationship binding the parties to this case and therefore cannot be regarded as an act referred to by Article 249 EC against which an action for annulment may lie under Article 230 EC.
51	It should be noted that in spite of the contractual nature of the present dispute and the contested measure, the applicant did not make an application to the Court under Article 238 EC, but rather brought an action for annulment under Article 230 EC.
52	It describes its action as an action for annulment pursuant to Article 230 EC and claims that the Court should declare unlawful the contested measure, by which the Commission informed the applicant of the seizure of the sum at issue on account of the delay in delivering the goods, and consequently should annul that measure.
53	However, as has been pointed out above, measures such as the measure in this case, which form part of a purely contractual framework, from which they cannot be separated, are not, by their very nature, measures referred to by Article 249 EC, which the Community courts can be requested to annul under Article 230 EC.
54	It is true that when an action for annulment has been brought before the Court when the dispute was, in point of fact, contractual in nature, the Court has previously agreed to reclassify the action ( Lecureur
v Commission, cited at paragraph 46 above, paragraph 38). However, in this case the Court considers that there is no need to carry out such a reclassification. First, as is clear from paragraph 9 of the reply, the applicant has expressly abandoned the right to bring an action for repayment under Article 238 EC. It stated that such action was not necessary in the present case because the Commission would, in any event, be required to pay it the sum claimed in order to comply with any judgment granting its claim for annulment.
55	The Court considers that the choice made by the applicant, for reasons of its own, is unable to change the conditions governing the admissibility of an action for annulment laid down by the Treaty.
56	Second, it should be noted that the applicant also relied, at paragraph 10 of the reply, on Article 24 of Regulation No 2519/97 and the arbitration clause contained therein as a basis for the admissibility of this action for annulment.
57	However, in its reply to the written question put by the Court, the applicant explicitly stated, at paragraph 5, that the action for annulment constituted the only appropriate form of action in this case, while reiterating that it was not necessary to bring an action for payment under Article 238 EC. At paragraph 2 of its reply to the written question put by the Court, the applicant argued that Article 24 of Regulation No 2519/97 did not limit the means of redress provided for in the Treaty and, in particular, did not preclude an action for annulment.
58	In this respect, at paragraphs 4 to 8 of its reply to the written question put by the Court, the applicant added that, unlike the cases which gave rise to the orders in Mutual Aid Administration Services v Commission
and Innova v Commission, cited at paragraph 30 above, in which, apart from the fact that there was no arbitration cause, the contested measures had been adopted solely by virtue of the contract binding the parties, the measure contested here had been adopted on the basis of secondary Community law. Therefore, the applicant considers that Article 230 EC constitutes the measure of redress provided for by the framers of the Treaty in order to review the legality of measures adopted by Community institutions such as that forming the subject-matter of this action. However, such an argument cannot be accepted in this case. The contractual nature of the present dispute cannot be denied solely on the ground that the contested measure was adopted on the basis of a regulation and not by virtue of a contract. It should be noted that in this case the terms of Regulation No 2519/97 form part of the contractual provision binding the parties to this dispute.
59	Finally, in its reply to the Court’s written question, the applicant also submitted an alternative claim requesting that the Commission be ordered to pay the sum of EUR 346 221.20. However, as has already been noted above (see paragraphs 57 and 58), in that reply the applicant emphasised that its action should be interpreted as constituting an action for annulment under Article 230 EC. Accordingly, the Court considers that it is unable to reclassify, in accordance with the case-law cited at paragraph 54 above, the applicant’s claim for annulment by which it set out in its application the subject-matter of this dispute vis-à-vis
the Commission and the Court.
60	The alternative claim put forward by the applicant in its reply to the question put by the Court, requesting that the Commission be ordered to pay the sum of EUR 346 221.20, constitutes a new claim seeking to widen the subject-matter of the dispute as set out in the application, which is contrary to the requirements of the combined provisions of Articles 44(1) and 48(2) of the Rules of Procedure, and must therefore be declared inadmissible (see Case T‑3/99 Banatrading
v Council
[2001] ECR II‑2123, paragraph 29, and Case T‑210/00 Biret & Cie
v Council
[2002]  ECR II‑47, paragraph 49, and the case-law cited therein).
61	For the sake of completeness, even if – quod non
– the contested measure were to be regarded as a measure against which an action may lie under the fourth paragraph of Article 230 EC, it would, in any event, have to be declared inadmissible. The contested measure merely confirms the refusal of the applicant’s request by the Commission on 21 December 2001, to which the applicant objected on 22 March 2002 and 25 October 2002, objections which were again rejected by the Commission on 16 September 2002 and 23 May 2003 (see paragraphs 16 to 21 above).
62	It is settled case-law that a decision which merely confirms a previous decision is not open to challenge and that any action directed against such a decision is accordingly inadmissible (see Case 26/76 Metro
v Commission
[1977] ECR 1875, paragraph 4; Case C-180/96 United Kingdom
v Commission
[1998] ECR I‑2265, paragraphs 27 and 28; and order in Case T‑116/95 Cementir
v Commission
[1998] ECR II‑2261, paragraph 19, and the case-law cited therein).
63	In this case, the contested measure does not alter the Commission’s position set out in the fax of 21 December 2001 in so far as it refuses to pay the applicant the sum of EUR 346 221.20 deducted from the total amount requested by the applicant. The contested measure merely confirms that fax of 21 December 2001. Accordingly this action is, on any basis, inadmissible.
64	Having regard to the foregoing considerations, this action must be dismissed as inadmissible.
65	Furthermore, irrespective of whether such an action is well founded, there is nothing to prevent the applicant from bringing an action before the Court of First Instance under Article 238 EC.
Costs
66	Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful and the Commission has applied for costs, the applicant must be ordered to pay the costs.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby:
1. Dismisses the application as inadmissible.
2. Orders the applicant to bear the costs.
Luxembourg, 9 June 2005.