61978CJ0092_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 92/78
SIMMENTHAL, S.P.A, HAVING ITS REGISTERED OFFICE AT APRILIA ( ITALY ), REPRESENTED BY EMILIO CAPPELLI AND PAOLO DE CATERINI OF THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF CHARLES TURK, 4 RUE NICHOLAS WELTER,
APPLICANT,
SUPPORTED BY
THE GOVERNMENT OF THE ITALIAN REPUBLIC, REPRESENTED BY THE ITALIAN AMBASSADOR IN LUXEMBOURG, ADOLFO MARESCA, ACTING AS AGENT, ASSISTED BY IVO MARIA BRAGUGLIA, DEPUTY STATE ADVOCATE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY,
INTERVENER,
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PETER KALBE, 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 78/258 OF 15 FEBRUARY 1978 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 1978 ( OFFICIAL JOURNAL L 69 OF 11 MARCH 1978, P . 36 ),
Grounds
1THE APPLICANT BY AN APPLICATION LODGED ON 13 APRIL 1978 PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY REQUESTS THE COURT IN ITS FINALLY AMENDED STATEMENT OF CLAIM TO ANNUL COMMISSION DECISION NO 78/258 OF 15 FEBRUARY 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 FIRST QUARTER OF 1978 ( OFFICIAL JOURNAL L 69, P . 36 ).
2IN SUPPORT OF ITS APPLICATION THE APPLICANT HAS RELIED ON ARTICLE 184 OF THE EEC TREATY AND INVOKED THE INAPPLICABILITY OF THE FOLLOWING MEASURES WHICH CONSTITUTE THE LEGAL BASIS OF THE DECISION WHICH IS CHALLENGED .
- COMMISSION REGULATION NO 585/77 OF 18 MARCH 1977 ON THE SYSTEM OF IMPORT AND EXPORT LICENCES FOR BEEF AND VEAL ( OFFICIAL JOURNAL L 75, P . 5 );
- COMMISSION REGULATION NO 2900/77 OF 22 DECEMBER 1977 LAYING DOWN DETAILED RULES FOR THE SALE OF BEEF HELD BY THE INTERVENTION AGENCIES TO ENABLE THE IMPORT WITH TOTAL SUSPENSION OF THE LEVY OF FROZEN BEEF AND VEAL INTENDED FOR PROCESSING ( OFFICIAL JOURNAL L 338, P . 6 );
- COMMISSION REGULATION NO 2901/77 OF 22 DECEMBER 1977 AMENDING REGULATIONS ( EEC ) NO 585/77 AND ( EEC ) NO 597/77 ESPECIALLY AS REGARDS THE TOTAL SUSPENSION OF THE LEVY IN THE FRAMEWORK OF THE SPECIAL IMPORT SYSTEM FOR FROZEN BEEF AND VEAL ( OFFICIAL JOURNAL L 338, P . 9 );
- GENERAL NOTICE OF PERIODIC INVITATIONS TO TENDER FOR THE SALE OF FROZEN BEEF HELD BY THE INTERVENTION AGENCIES TO ENABLE THE IMPORT WITH TOTAL SUSPENSION OF THE LEVY OF FROZEN BEEF AND VEAL INTENDED FOR PROCESSING, PUBLISHED BY THE COMMISSION ON 13 JANUARY 1978 ( OFFICIAL JOURNAL C 11, P . 16 ), AND ALSO
- NOTICE OF INVITATION TO TENDER NO IT P 1 - REGULATION ( EEC ) NO 2900/77 - FOR THE SALE OF CERTAIN FROZEN UNBONED ( BONE-IN ) BEEF HELD IN STOCK BY THE ITALIAN INTERVENTION AGENCY, PUBLISHED BY THE COMMISSION ON 13 JANUARY 1978 ( OFFICIAL JOURNAL C 11, P . 34 ).
THE CATEGORY OF PROCEEDINGS TO WHICH THE APPLICATION BELONGS AND ITS OBJECT
3IT SHOULD IN THE FIRST PLACE BE BORNE IN MIND THAT 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 . 192 ) HAD PROVIDED IN ARTICLE 14 THEREOF FOR SPECIAL IMPORT TERMS CONSISTING OF THE SUSPENSION OF THE LEVY FOR THE BENEFIT OF CERTAIN FROZEN MEAT INTENDED FOR PROCESSING, NAMELY :
( A ) RULES FOR THE TOTAL OR PARTIAL SUSPENSION OF THE LEVY IN RESPECT OF MEAT INTENDED FOR THE MANUFACTURE OF CERTAIN PRESERVED PURE BEEF AND VEAL AND
( B)SIMILAR RULES BENEFITING THE OTHER USES FOR WHICH MEAT IS PROCESSED BY THE PROCESSING INDUSTRY, THE ADVANTAGE TO BE DERIVED BEING CONDITIONAL ON THE SUBMISSION BY THE IMPORTER OF A CONTRACT FOR THE PURCHASE OF A FIXED QUANTITY OF FROZEN BEEF AND VEAL HELD BY AN INTERVENTION AGENCY, KNOWN AS THE ' ' LINKING ' '
SYSTEM .
4THESE RULES FROM WHICH THE PRESERVED FOOD INDUSTRY DERIVES VERY GREAT BENEFIT WERE LATER MADE SUBJECT TO MORE RESTRICTIVE CONDITIONS BY COUNCIL REGULATION NO 425/77 OF 14 FEBRUARY 1977 ( OFFICIAL JOURNAL L 61, P . 1 ).
5THE SECOND RECITAL IN THE PREAMBLE TO THAT REGULATION, AFTER HAVING DRAWN ATTENTION TO THE FACT THAT THE PREVIOUS RULES WERE JUSTIFIED BECAUSE THERE WAS A SHORTAGE ACCOMPANIED BY A RISE IN PRICES, STATES THAT THIS SITUATION HAS SINCE THEN DEGENERATED INTO A MARKET PRICE SLUMP MADE WORSE BY MASSIVE IMPORTS .
6THE FIFTH RECITAL STATES THAT CERTAIN SPECIAL SYSTEMS SHOULD BE ADAPTED SO THAT ACCOUNT MAY BE TAKEN IN ANNUAL ESTIMATES OF BOTH THE SUPPLIES AVAILABLE TO THE COMMUNITY AND THE COMMUNITY ' S NEEDS .
7TO THIS END ARTICLE 3 OF REGULATION NO 425/77 AMENDS, INTER ALIA, ARTICLE 14 OF REGULATION NO 805/68 IN THAT, AS PROVIDED FOR IN ARTICLE 14 ( 1 ) ( A ) OF THE NEW VERSION OF THAT ARTICLE, THE TOTAL SUSPENSION OF THE LEVY ON MEAT INTENDED FOR THE MANUFACTURE OF PRESERVED FOOD, WHICH DOES NOT CONTAIN CHARACTERISTIC COMPONENTS OTHER THAN BEEF AND JELLY IS RETAINED ON THE UNDERSTANDING HOWEVER THAT THESE IMPORTS MAY THEMSELVES HENCEFORTH ALSO BE SUBJECT TO THE ' ' LINKING ' '
SYSTEM .
8WITH THIS IN MIND THE NEW ARTICLE 14 ( 3 ) ( B ) PROVIDES THAT AS FAR AS CONCERNS ALL THE FROZEN MEAT INTENDED FOR PROCESSING AND DEFINED IN THE RELEVANT TARIFF HEADINGS ' ' IMPORTATION UNDER TOTAL SUSPENSION OF THE LEVY MAY BE MADE CONDITIONAL, AS FAR AS NECESSARY, ON PRODUCTION OF A PURCHASE CONTRACT FOR FROZEN MEAT HELD BY AN INTERVENTION AGENCY ' ' .
9THE NEW ARTICLE 14 ( 4 ) PROVIDES THAT DETAILED RULES FOR THE APPLICATION OF THE SAID ARTICLE ARE TO BE SETTLED BY THE COMMISSION IN ACCORDANCE WITH THE ' ' MANAGEMENT COMMITTEE ' '
PROCEDURE .
10IT WAS ON THE BASIS OF THIS PROCEDURE THAT THE COMMISSION ADOPTED THE REGULATIONS LAYING DOWN THE DETAILED RULES FOR THE APPLICATION OF THE SYSTEM AS PROVIDED FOR IN THE NEW ARTICLE 14 OF REGULATION NO 805/68, NAMELY REGULATION NO 585/77 WHICH WAS IN TURN AMENDED AND SUPPLEMENTED BY REGULATION NO 1384/77 OF 27 JUNE 1977 ( OFFICIAL JOURNAL L 157, P . 16 ), LAYING DOWN THE RULES FOR ISSUING IMPORT AND EXPORT LICENCES PROVIDED FOR BY ARTICLE 14 ( 3 ) ( A ) AND ALSO REGULATIONS NO 2900/77 AND NO 2901/77 OF 22 DECEMBER 1977 WHICH LAY DOWN, IN VARIOUS WAYS, THE DETAILED RULES FOR THE APPLICATION OF THE SYSTEM KNOWN AS ' ' LINKING ' ' .
11THE GENERAL NOTICE OF PERIODIC INVITATIONS TO TENDER OF 13 JANUARY 1978 AND A COMPLETE SET OF SPECIFIC INVITATIONS TO TENDER FOR THE FIRST QUARTER OF 1978 PUBLISHED ON THE SAME DATE INCLUDING NOTICE OF INVITATION TO TENDER NO IT P 1 RELATING TO ITALY HAVE BEEN ISSUED PURSUANT TO THOSE REGULATIONS .
12OUT OF ALL THESE REGULATIONS THE FOLLOWING PROVISIONS HAVE SPECIAL RELEVANCE IN THESE PROCEEDINGS :
- ARTICLE 1 ( 1 ) OF REGULATION NO 2900/77 WHICH PROVIDES THAT IMPORTATION WITH TOTAL SUSPENSION OF THE LEVY ' ' SHALL BE CONDITIONAL UPON THE SUBMISSION OF A PURCHASE CONTRACT FOR FROZEN MEAT HELD BY AN INTERVENTION AGENCY ' ', THE SALE TAKING PLACE - AS PROVIDED FOR IN SUBPARAGRAPH ( 2 ) OF THE SAID ARTICLE - ' ' BY WAY OF TENDER ' '
IN ACCORDANCE WITH THE GENERAL RULES APPLICABLE THERETO ;
- ARTICLE 2 ( 1 ) OF THE SAID REGULATION WHICH PROVIDES THAT A GENERAL NOTICE OF INVITATION TO TENDER SHALL BE PUBLISHED BEFORE THE FIRST OF THE PARTIAL INVITATIONS TO TENDER EACH QUARTER OPENED BY THE INTERVENTION AGENCIES ;
- ARTICLE 3 ( 4 ) OF THE SAID REGULATION WHICH PROVIDES THAT ' ' ONLY TENDERS FOR A TOTAL QUANTITY OF NOT LESS THAN FIVE TONNES AND NOT MORE THAN 100 TONNES . . . CAN BE ACCEPTED ' ' ;
- ARTICLE 5 OF THE SAID REGULATION WHICH PROVIDES THAT MINIMUM PRICES MAY BE FIXED FOR THE DIFFERENT CATEGORIES OF MEAT WHICH BENEFIT FROM THE ARRANGEMENTS FOR SUSPENSION OF THE LEVY ;
- ARTICLE 11 A ( 1 ) ( A ) OF REGULATION NO 585/77 - ADDED BY REGULATION NO 2901/77 - WHICH PROVIDES THAT EVERY APPLICATION FOR A LICENCE TO IMPORT BEEF AND VEAL WITH SUSPENSION OF THE LEVY MUST BE ACCOMPANIED BY THE ORIGINAL OF A PURCHASE CONTRACT FOR FROZEN MEAT HELD BY AN INTERVENTION AGENCY, DRAWN UP IN ACCORDANCE WITH REGULATION NO 2900/77 ;
- ARTICLE 11 A ( 2 ) OF THE SAID REGULATION WHICH PROVIDES THAT APPLICATIONS FOR LICENCES SHALL BE CONSIDERED ONLY IF THE APPLICANT IS A NATURAL OR LEGAL PERSON WHO FOR AT LEAST 12 MONTHS HAS BEEN CARRYING ON BUSINESS IN THE MEAT AND LIVESTOCK SECTOR AND OFFICIALLY REGISTERED IN A MEMBER STATE ;
- SUBPARAGRAPHS ( B ) AND ( D ) OF SECTION 6 ' ' AWARD OF CONTRACT ' '
OF THE GENERAL NOTICE OF PERIODIC INVITATIONS TO TENDER OF 13 JANUARY 1978 WHICH STATE :
' ' ( B ) IF THE PRICE TENDERED IS LOWER THAN THE MINIMUM PRICE FIXED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES THE TENDER SHALL BE REJECTED .
. . .
( D ) EACH TENDERER SHALL BE INFORMED WITHOUT DELAY BY THE INTERVENTION AGENCY OF THE OUTCOME OF HIS PARTICIPATION IN THE INVITATION TO TENDER . ' ' ;
-FINALLY : NOTICE OF INVITATION TO TENDER NO IT P 1 OF 13 JANUARY 1978 WHICH STATES THAT THE ITALIAN INTERVENTION AGENCY AIMA SHALL SELL APPROXIMATELY 4 000 TONNES OF BEEF IN ACCORDANCE WITH THE RULES LAID DOWN IN THE GENERAL NOTICE OF INVITATIONS TO TENDER AND THAT ONLY TENDERS WHICH REACH AIMA ON 30 JANUARY 1978 AT THE LATEST SHALL BE CONSIDERED .
13THE APPLICANT SUBMITTED TO AIMA ON 20 JANUARY 1978 A TENDER FOR THE PURCHASE OF 100 TONNES OF FROZEN BEEF OFFERING A PRICE OF LIT 1 124 000 PER TONNE ( 1 091.26 UNITS OF ACCOUNT PER TONNE ).
14AIMA FORWARDED THIS TENDER FORTHWITH TO THE COMMISSION TOGETHER WITH ALL THE OTHER TENDERS COLLECTED IN ITALY .
15THE COMMISSION HAVING CONSIDERED ALL THE TENDERS FORWARDED BY THE INTERVENTION AGENCIES OF THE VARIOUS MEMBER STATES ADOPTED COMMISSION DECISION NO 78/258 OF 15 FEBRUARY 1978 ADDRESSED TO THE MEMBER STATES . ITS PURPOSE IS TO FIX THE MINIMUM SELLING PRICES APPLICABLE IN THE DIFFERENT MEMBER STATES, THE MINIMUM SELLING PRICE FOR ITALY AS FAR AS CONCERNS THE CATEGORY IN WHICH THE APPLICANT IS INTERESTED BEING FIXED AT 1 601 UNITS OF ACCOUNT PER TONNE .
16SUBSEQUENT TO THIS DECISION AIMA INFORMED THE APPLICANT BY A LETTER OF 23 FEBRUARY 1978 THAT ITS TENDER HAD BEEN REJECTED BECAUSE IT HAD NO CHANCE OF BEING CONSIDERED WHEN THE CONTRACTS WERE AWARDED .
17THIS LATTER COMMUNICATION HAS NOT BEEN THE SUBJECT-MATTER OF ANY ACTION BEFORE THE ITALIAN COURTS SINCE THE APPLICANT HAS BROUGHT HIS APPLICATION IN RESPECT OF COMMISSION DECISION NO 78/258 DIRECTLY AGAINST THE COMMISSION .
ADMISSIBILITY OF THE APPLICATION AND THE PLEA OF ILLEGALITY
18THE COMMISSION ADMITS THAT, ALTHOUGH THE CONTESTED DECISION WAS ADDRESSED TO THE MEMBER STATES, IT IS OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT IN THAT, BY EXCLUDING ALL TENDERS TENDERING PRICES LOWER THAN THE MINIMUM PRICE, IT ALSO PROVIDED THAT THE TENDER SUBMITTED BY THE APPLICANT WOULD BE REJECTED BECAUSE THE PRICE TENDERED WAS BELOW THAT PRICE .
19ON THE OTHER HAND THE COMMISSION DENIES THAT THE APPLICATION IS ADMISSIBLE ON THE GROUND THAT THE APPLICANT DOES NOT HAVE ANY INTEREST IN INSTITUTING PROCEEDINGS .
20IN FACT THE COMMISSION TAKES THE VIEW THAT THE ANNULMENT OF THE DECISION CANNOT BESTOW UPON THE APPLICANT THE ADVANTAGE WHICH IT IS SEEKING NOW THAT THE CONTRACTS IN ACCORDANCE WITH THE INVITATION TO TENDER HAVE BEEN CONCLUDED, THE LICENCES HAVE BEEN ISSUED AND THE IMPORTS HAVE BEEN EFFECTED, WHILE THE TENDERS WHICH HAVE NOT BEEN ACCEPTED ARE HENCEFORTH NON-EXISTENT .
21SINCE THE APPLICANT HAS ELECTED TO APPLY TO THIS COURT AND DIRECTLY CHALLENGE THE COMMISSION DECISION, AND NOT TO APPLY TO THE NATIONAL COURTS AND THERE CHALLENGE THE DECISION OF REFUSAL ADDRESSED TO IT INDIVIDUALLY BY THE ITALIAN INTERVENTION AGENCY, ANY DECISION AS TO THE ADMISSIBILITY OF THE APPLICATION IS CONCERNED WITH THE DIVISION OF JURISDICTION BETWEEN THIS COURT AND THE NATIONAL COURTS .
22CONSEQUENTLY IT IS NECESSARY FOR THE COURT TO CONSIDER OF ITS OWN MOTION THE QUESTION WHETHER THE APPLICATION IS ADMISSIBLE VIEWED AS A WHOLE AND NOT JUST FROM THE STANDPOINT OF THE OBJECTION RAISED BY THE COMMISSION .
23THE COMMISSION ADOPTED THE DECISION AT ISSUE AFTER THE NATIONAL INTERVENTION AGENCIES HAD FORWARDED TO IT THE TENDERS WHICH THE LATTER HAD RECEIVED IN ANSWER TO THE INVITATIONS TO TENDER ISSUED BY THE NOTICES OF 13 JANUARY 1978 .
24THE COMMISSION THEREFORE TOOK INTO CONSIDERATION THE APPLICANT ' S TENDER TOGETHER WITH THE OTHER TENDERS SUBMITTED WITHIN THE WHOLE OF THE COMMUNITY WITH A VIEW TO FIXING A PRICE WHICH WAS TO ENSURE THAT A PREDETERMINED QUANTITY OF MEAT HELD BY THE INTERVENTION AGENCIES WAS DISPOSED OF AT THE MOST PROFITABLE PRICES FOR THEM .
25THUS, ALTHOUGH THE COMMISSION DECISION WAS ADOPTED IN THE FORM OF A DECISION ADDRESSED TO THE MEMBER STATES AND THROUGH THEM TO THE INTERVENTION AGENCIES, IT HAS DIRECTLY DETERMINED THE FATE, BE IT FAVOURABLE OR UNFAVOURABLE, OF EACH OF THE TENDERS SUBMITTED IN ANSWER TO THE NOTICES OF INVITATIONS TO TENDER OF 13 JANUARY 1978 .
26SINCE THE INVITATION TO TENDER IN QUESTION IS IN FACT ONE WHICH COVERS THE WHOLE OF THE COMMUNITY AND WAS DECIDED UPON BY THE COMMISSION ALONE - THE INTERVENTION AGENCIES ONLY ACTING AS AGENTS FOR THE PURPOSE OF COLLECTING THE TENDERS AND NOTIFYING THE PARTICIPANTS OF THE RESULT - IT CANNOT BE DENIED THAT THE COMMISSION DECISION IS OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT AND THAT ITS APPLICATION IS THEREFORE ADMISSIBLE .
27IT MUST HOWEVER BE STRESSED THAT THE SUBJECT-MATTER OF THE APPLICATION TO THE COURT MUST BE RESTRICTED TO THE EFFECT WHICH THE CONTESTED DECISION MAY HAVE BEEN ABLE TO HAVE ON ALL THOSE TO WHOM IT WAS ADDRESSED AND WHO WERE DIRECTLY AND INDIVIDUALLY CONCERNED BY IT .
28IT IS IN FACT APPARENT FROM THE RELEVANT REGULATIONS AND FROM THE GENERAL NOTICE OF INVITATIONS TO TENDER THAT IT IS THE DUTY OF THE INTERVENTION AGENCIES, IN ADDITION TO ACCEPTING AND REJECTING TENDERS WITHIN THE SCOPE OF THE TENDERING PROCEDURE, TO SOLVE, BY USING THEIR OWN DISCRETION, A CERTAIN NUMBER OF SUBSIDIARY QUESTIONS, DIRECTLY CONNECTED WITH THE SYSTEM OF INVITATIONS TO TENDER OR WITH THE CONCLUSION AND PERFORMANCE OF THE CONTRACTS OF SALE .
29IN SO FAR AS DISPUTES MAY ARISE AS A RESULT OF THE INTERVENTION AGENCIES CARRYING OUT APPROPRIATE DUTIES OF THIS KIND THE NATIONAL COURTS ALONE HAVE JURISDICTION AS SECTION 12 ' ' FINAL PROVISIONS ' '
OF THE GENERAL NOTICE OF INVITATIONS TO TENDER CORRECTLY STATES .
30THIS JURISDICTION IS ALSO CONFERRED UPON NATIONAL COURTS SHOULD THE INTERVENTION AGENCIES DISREGARD ANY COMMUNITY LEGAL PROVISIONS, SINCE THE RESPONSIBILITIES ASSUMED BY THE INSTITUTIONS OF THE COMMUNITY DO NOT COVER THE DISPUTES WHICH MIGHT ARISE OUT OF SUCH ACTIONS .
31CONTRARY TO THE COMMISSION ' S SUBMISSIONS IT CANNOT BE DENIED THAT THE APPLICANT HAS AN INTEREST IN THE APPLICATION WHICH IT HAS BROUGHT .
32EVEN THOUGH THE CONTESTED DECISION HAS ALREADY BEEN FULLY IMPLEMENTED FOR THE BENEFIT OF THE OTHER TENDERERS PARTICIPATING IN THE SAME INVITATION TO TENDER THE APPLICANT RETAINS AN INTEREST IN THE ANNULMENT OF THIS DECISION ; SUCH INTEREST CONSISTS EITHER IN ITS BEING RESTORED SUFFICIENTLY BY THE COMMISSION TO ITS ORIGINAL POSITION OR IN INDUCING THE COMMISSION TO MAKE SUITABLE AMENDMENTS IN THE FUTURE TO THE SYSTEM OF INVITATIONS TO TENDER IF THE LATTER IS FOUND TO BE INCOMPATIBLE WITH CERTAIN LEGAL REQUIREMENTS .
33THE PLEA OF INADMISSIBILITY WHICH THE COMMISSION HAS RAISED MUST THEREFORE BE REJECTED .
34WHILE THE APPLICANT FORMALLY CHALLENGES COMMISSION DECISION NO 78/258 IT HAS AT THE SAME TIME CRITICIZED, IN RELIANCE ON ARTICLE 184 OF THE EEC TREATY, CERTAIN ASPECTS OF THE ' ' LINKING ' '
SYSTEM IN THE FORM IN WHICH IT HAS BEEN IMPLEMENTED PURSUANT TO THE NEW ARTICLE 14 OF REGULATION NO 805/68, BY REGULATION NO 2900/77 AND NO 2901/77 AND ALSO BY THE NOTICES OF INVITATIONS TO TENDER OF 13 JANUARY 1978 .
35ARTICLE 184 READS : ' ' NOTWITHSTANDING THE EXPIRY OF THE PERIOD LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 173, ANY PARTY MAY, IN PROCEEDINGS IN WHICH A REGULATION OF THE COUNCIL OR THE COMMISSION IS IN ISSUE, PLEAD THE GROUNDS SPECIFIED IN THE FIRST PARAGRAPH OF ARTICLE 173, IN ORDER TO INVOKE BEFORE THE COURT OF JUSTICE THE INAPPLICABILITY OF THAT REGULATION ' ' .
36THERE IS NO DOUBT THAT THIS PROVISION ENABLES THE APPLICANT TO CHALLENGE INDIRECTLY DURING THE PROCEEDINGS, WITH A VIEW TO OBTAINING THE ANNULMENT OF THE CONTESTED DECISION, THE VALIDITY OF THE MEASURES LAID DOWN BY REGULATION WHICH FORM THE LEGAL BASIS OF THE LATTER .
37ON THE OTHER HAND THERE ARE GOUNDS FOR QUESTIONING WHETHER ARTICLE 184 APPLIES TO THE NOTICES OF INVITATIONS TO TENDER OF 13 JANUARY 1978 WHEN ACCORDING TO ITS WORDING IT ONLY PROVIDES FOR THE CALLING IN QUESTION OF ' ' REGULATIONS ' ' .
38THESE NOTICES ARE GENERAL ACTS WHICH DETERMINE IN ADVANCE AND OBJECTIVELY THE RIGHTS AND OBLIGATIONS OF THE TRADERS WHO WISH TO PARTICIPATE IN THE INVITATIONS TO TENDER WHICH THESE NOTICES MAKE PUBLIC .
39AS THE COURT IN ITS JUDGMENT OF 12 JUNE 1958 IN CASE 15/57, COMPAGNIE DES HAUTS FOURNEAUX DE CHASSE V HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY ( 1957 AND 1958 ) ECR 211, AND IN ITS JUDGMENT OF 13 JUNE 1956 IN CASE 9/56, MERONI & CO ., INDUSTRIE METALLURGISCHE S.P.A . V HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY ( 1957 AND 1958 ) ECR 133, HAS ALREADY HELD IN CONNEXION WITH ARTICLE 36 OF THE ECSC TREATY, ARTICLE 184 OF THE EEC TREATY GIVES EXPRESSION TO A GENERAL PRINCIPLE CONFERRING UPON ANY PARTY TO PROCEEDINGS THE RIGHT TO CHALLENGE, FOR THE PURPOSE OF OBTAINING THE ANNULMENT OF A DECISION OF DIRECT AND INDIVIDUAL CONCERN TO THAT PARTY, THE VALIDITY OF PREVIOUS ACTS OF THE INSTITUTIONS WHICH FORM THE LEGAL BASIS OF THE DECISION WHICH IS BEING ATTACKED, IF THAT PARTY WAS NOT ENTITLED UNDER ARTICLE 173 OF THE TREATY TO BRING A DIRECT ACTION CHALLENGING THOSE ACTS BY WHICH IT WAS THUS AFFECTED WITHOUT HAVING BEEN IN A POSITION TO ASK THAT THEY BE DECLARED VOID .
40THE FIELD OF APPLICATION OF THE SAID ARTICLE MUST THEREFORE INCLUDE ACTS OF THE INSTITUTIONS WHICH, ALTHOUGH THEY ARE NOT IN THE FORM OF A REGULATION, NEVERTHELESS PRODUCE SIMILAR EFFECTS AND ON THOSE GROUNDS MAY NOT BE CHALLENGED UNDER ARTICLE 173 BY NATURAL OR LEGAL PERSONS OTHER THAN COMMUNITY INSTITUTIONS AND MEMBER STATES .
41THIS WIDE INTERPRETATION OF ARTICLE 184 DERIVES FROM THE NEED TO PROVIDE THOSE PERSONS WHO ARE PRECLUDED BY THE SECOND PARAGRAPH OF ARTICLE 173 FROM INSTITUTING PROCEEDINGS DIRECTLY IN RESPECT OF GENERAL ACTS WITH THE BENEFIT OF A JUDICIAL REVIEW OF THEM AT THE TIME WHEN THEY ARE AFFECTED BY IMPLEMENTING DECISIONS WHICH ARE OF DIRECT AND INDIVIDUAL CONCERN TO THEM .
42THE NOTICES OF INVITATIONS TO TENDER OF 13 JANUARY 1978 IN RESPECT OF WHICH THE APPLICANT WAS UNABLE TO INITIATE PROCEEDINGS ARE A CASE IN POINT, SEEING THAT ONLY THE DECISION TAKEN IN CONSEQUENCE OF THE TENDER WHICH IT HAD SUBMITTED IN ANSWER TO A SPECIFIC INVITATION TO TENDER COULD BE OF DIRECT AND INDIVIDUAL CONCERN TO IT .
43THERE ARE THEREFORE GOOD GROUNDS FOR DECLARING THAT THE APPLICANT ' S CHALLENGE DURING THE PROCEEDINGS UNDER ARTICLE 184, WHICH RELATES NOT ONLY TO THE ABOVE-MENTIONED REGULATIONS BUT ALSO TO THE NOTICES OF INVITATIONS TO TENDER OF 13 JANUARY 1978, IS ADMISSIBLE, ALTHOUGH THE LATTER ARE NOT IN THE STRICT SENSE MEASURES LAID DOWN BY REGULATION .
SUBSTANCE
44THE APPLICANT, SUPPORTED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AS INTERVENER, IN ORDER TO SHOW THAT THE CONTESTED DECISION IS A NULLITY PUTS FORWARD VARIOUS SUBMISSIONS INTENDED TO ESTABLISH, ON THE ONE HAND, THAT THERE HAS BEEN AN INFRINGEMENT OF ARTICLE 14 OF REGULATION NO 425/77 AND, ON THE OTHER HAND, THAT SOME OF THE ACTS CONSTITUTING THE SUBJECT-MATTER OF THE APPLICATION ARE VITIATED BY DEFECTS AS TO FORM .
45THE SUBMISSIONS ON THE SUBSTANCE OF THE APPLICATION MAY BE SUMMARIZED BY THE OBJECTION THAT WHEN THE COMMISSION MADE THE ARRANGEMENTS FOR THE SYSTEM KNOWN AS ' ' LINKING ' '
IT MISUSED ITS POWERS HAVING REGARD TO THE RULES LAID DOWN IN THE NEW ARTICLE 14 OF THE BASIC REGULATION .
46IN PARTICULAR THE APPLICANT SUBMITS THAT
- THE COMMISSION EXCESSIVELY ENLARGED THE CATEGORY OF BENEFICIARIES INTENDED TO AVAIL THEMSELVES OF AN ADVANTAGE RESERVED FOR THE PROCESSING INDUSTRY BY THE BASIC REGULATION ;
- THE BENEFICIARIES IN THIS CATEGORY WHO HAVE BOUGHT MEAT FROM STOCKS HELD BY THE INTERVENTION AGENCIES DO NOT HAVE TO USE IT FOR A SPECIFIC PURPOSE ;
- THERE ARE CERTAIN IRREGULARITIES AS FAR AS CONCERNS THE QUANTITATIVE ASPECTS OF THE RULES LAID DOWN BY THE COMMISSION ;
- DIFFERING PRICES WERE FIXED FOR THE SALE OF MEAT FROM STOCKS HELD BY THE INTERVENTION AGENCIES OF THE DIFFERENT MEMBER STATES ;
- THE MACHINERY SET UP FOR IMPLEMENTING THE SYSTEM, TAKEN AS A WHOLE, HAD AN EFFECT ON THE LEVEL OF THE MINIMUM PRICE FIXED BY COMMISSION DECISION 78/258 .
47THE APPLICANT ' S SUBMISSIONS DEALING WITH PROCEDURAL REQUIREMENTS RELATE, ON THE ONE HAND, TO A FAILURE TO GIVE A STATEMENT OF THE REASONS UPON WHICH SEVERAL OF THE CONTESTED ACTS WERE BASED AND, ON THE OTHER HAND, TO THE FACT THAT THE TENDERS SUBMITTED IN ANSWER TO THE INVITATION TO TENDER ORGANIZED PURSUANT TO THE PROVISIONS WHICH ARE AT ISSUE WERE NOT ANONYMOUS .
48AS FAR AS CONCERNS THE FAILURE TO GIVE A STATEMENT OF REASONS AN ANALYSIS OF THE OBJECTIONS SHOWS THAT THE APPLICANT ' S SUBMISSION IS IN FACT DIRECTED AGAINST THE COMMISSION ' S ACTUAL JUSTIFICATION OF ITS INTRODUCTION OF THE ' ' LINKING ' '
SYSTEM, IN THE LIGHT OF THE PROVISIONS OF THE BASIC REGULATION, AND THE FAILURE TO SET OUT THE ECONOMIC REASONS WHICH JUSTIFY THE FIXING BY COMMISSION DECISION NO 78/258 OF THE MINIMUM PRICE, WHICH WAS RESPONSIBLE FOR THE APPLICANT ' S NOT QUALIFYING FOR THE AWARD OF A CONTRACT .
49THESE OBJECTIONS WILL BE CONSIDERED IN CONNEXION WITH THE SUBSTANCE OF THE CASE .
THE SUBMISSION THAT THE COMMISSION HAS OMITTED TO JUSTIFY ITS INTRODUCTION OF THE SYSTEM KNOWN AS ' ' LINKING ' '
50THE APPLICANT SUBMITS THAT NONE OF THE COMMISSION ' S ACTS - THAT IS TO SAY NEITHER REGULATION NO 2900/77 WHICH LAYS DOWN THE RULES FOR THE ' ' LINKING ' '
SYSTEM NOR THE GENERAL NOTICE OF PERIODIC INVITATIONS TO TENDER OF 13 JANUARY 1978 - CONTAINS ANY JUSTIFICATION FOR INTRODUCING INTO THE SECTOR OF COMMERCIAL OPERATIONS UNDER CONSIDERATION THE ' ' LINKING ' '
SYSTEM, WHICH WAS REGARDED SIMPLY AS AN OPTION IN THE NEW ARTICLE 14 OF THE BASIC REGULATION .
51IT IS CLAIMED IN THIS CONNEXION THAT THE REASONS ON WHICH THE MEASURES ADOPTED BY THE COMMISSION WERE BASED HAVE NOT BEEN DULY STATED AS REQUIRED BY ARTICLE 190 OF THE TREATY NOR ARE THOSE MEASURES INTRINSICALLY JUSTIFIED .
52THE COMMISSION TAKES THE VIEW THAT REGULATION NO 2900/77 HAS PUT IN CONCRETE FORM AN OPTION EXPRESSLY PROVIDED FOR BY THE NEW ARTICLE 14 ( 3 ) ( B ) OF REGULATION NO 805/68 WITH THE RESULT THAT THE STATEMENT OF THE REASONS ON WHICH THAT MEASURE WAS BASED ARE EXACTLY THE SAME AS THE REASONS WHICH LED THE COUNCIL TO ANTICIPATE THIS OPTION TAKING INTO ACCOUNT THE MARKET CONDITONS AT THE PERIOD UNDER CONSIDERATION .
53WHEN THE COUNCIL AMENDED ARTICLE 14 OF REGULATION NO 805/68 BY REGULATION NO 425/77 IT LAID STRESS, IN THE SECOND AND FIFTH RECITALS IN THE PREAMBLE TO THE LATTER REGULATION, ON THE FACT THAT THE MAIN FEATURE OF THE SITUATION ON THE BEEF AND VEAL MARKET AT THAT TIME WAS A MARKET PRICE SLUMP, MADE WORSE BY MASSIVE IMPORTS, WITH THE RESULT THAT IT WAS NECESSARY TO ADAPT CERTAIN SPECIAL SYSTEMS SO THAT ACCOUNT MIGHT BE TAKEN OF BOTH THE SUPPLIES AVAILABLE TO THE COMMUNITY AND THE COMMUNITY ' S NEEDS .
54IT IS FOR THE PURPOSE OF DEALING WITH THIS SITUATION THAT THE NEW ARTICLE 14 ( 3 ) ( B ) OF REGULATION NO 805/68 HAS PROVIDED THAT IN FUTURE IMPORTS OF BEEF AND VEAL UNDER SUSPENSION OF THE LEVY, REQUIRED FOR THE MANUFACTURE OF PURE PRESERVED BEEF, MAY BE MADE CONDITIONAL ON PRODUCTION OF A PURCHASE CONTRACT FOR FROZEN MEAT HELD BY AN INTERVENTION AGENCY .
55AS THE COMMISSION HAS WITH GOOD REASON EXPLAINED, THE OBJECT OF THIS SYSTEM IS TO ACHIEVE A REASONABLE BALANCE BETWEEN, ON THE ONE HAND, THE INTEREST OF THE PROCESSING INDUSTRY IN IMPORTING BEEF AND VEAL AT WORLD MARKET PRICES AND, ON THE OTHER HAND, THE NEED TO REDUCE THE PRESSURE ON THE MARKET CAUSED BY THE STOCKS HELD BY THE INTERVENTION AGENCIES WHICH HAD ACCUMULATED WITHIN THE COMMUNITY .
56WHEN THE COMMISSION EXERCISED THE ENABLING POWERS CONFERRED UPON IT BY REGULATION NO 425/77 IMMEDIATELY AFTER THE ENTRY INTO FORCE OF THE NEW ARTICLE 14 OF REGULATION NO 805/68 IT DID NOT HAVE TO JUSTIFY ONCE MORE THE INTRODUCTION OF THE ' ' LINKING ' '
SYSTEM FOR THE IMPORTATION UNDER SUSPENSION OF THE LEVY ON MEAT INTENDED FOR THE MANUFACTURE OF PURE PRESERVED BEEF SEEING THAT THE OBJECTIVE OF THIS IMPLEMENTING MEASURE IS THE SAME AS THE AIM DEFINED AS CLEARLY AS ANYONE COULD WISH IN THE COUNCIL ' S BASIC REGULATION .
57CONSEQUENTLY THE REFERENCE TO THE NEW ARTICLE 14 OF REGULATION NO 805/68 IN THE SECOND CITATION IN THE PREAMBLE TO THAT REGULATION WAS SUFFICIENT JUSTIFICATION FOR THE ' ' LINKING ' '
SYSTEM AND AN ADEQUATE STATEMENT OF THE REASONS ON WHICH ITS INTRODUCTION BY ARTICLE 1 OF REGULATION NO 2900/77 WAS BASED .
58THIS SUBMISSION MUST THEREFORE BE REJECTED .
THE SUBMISSION THAT THE CATEGORY OF BENEFICIARIES HAS BEEN EXCESSIVELY ENLARGED
59THE APPLICANT BLAMES THE COMMISSION FOR HAVING BY REGULATION NO 2901/77, ARTICLE 1 WHEREOF ADDS A NEW ARTICLE 11A TO REGULATION NO 585/77, PERMITTED NATURAL AND LEGAL PERSONS, WHO FOR AT LEAST 12 MONTHS HAVE BEEN CARRYING ON BUSINESS IN THE MEAT AND LIVESTOCK SECTOR AND ARE OFFICIALLY REGISTERED IN A MEMBER STATE TO IMPORT BEEF AND VEAL UNDER SUSPENSION OF THE LEVY .
60THE OPPORTUNITY FOR IMPORTATION PROVIDED BY REGULATION NO 805/68 FOR THE BENEFIT OF THE PROCESSING INDUSTRY HAS THEREBY BEEN OFFERED ALSO TO A LARGE AND INDETERMINATE NUMBER OF PERSONS, THE DEFINITION OF WHOM IS MERELY BASED ON THE FACT THAT THEY ARE INTERESTED IN SOME WAY OR ANOTHER IN THE MEAT AND LIVESTOCK SECTOR WITHOUT BEING IN ANY WAY CONNECTED WITH PROCESSING .
61THIS SYSTEM OF DISTRIBUTION, BY LIMITING THE TONNAGE OF MEAT HELD BY THE INTERVENTION AGENCIES WHICH IS SUBJECT TO ' ' LINKING ' '
TO A MAXIMUM OF 100 TONNES PER PURCHASER, PURSUANT TO ARTICLE 3 ( 4 ) OF REGULATION NO 2900/77, HAS LED TO MANY INTERMEDIARIES COMING INTO IMPORT TRANSACTIONS AND TO THE CREATION FOR THEIR BENEFIT OF PROFITS WHICH ARE UNJUSTIFIED AND WHOLLY UNEARNED .
62IN THE VIEW OF THE ITALIAN GOVERNMENT THE WIDE DEFINITION OF THE CATEGORY OF BENEFICIARIES OF THE SYSTEM IN QUESTION HAS MEANT THAT THE LATTER NO LONGER HAS ANY MEANING AND HAS THUS REDUCED TO NOTHING ANY KIND OF ADVANTAGE WHICH THE COUNCIL REGULATION INTENDED TO GIVE TO THE PROCESSING INDUSTRIES OF THE SECTOR CONCERNED .
63THE COMMISSION DEFENDS ITSELF WITH THE SUBMISSION THAT THERE WAS NOTHING TO STOP THE MEAT PROCESSORS FROM PARTICIPATING IN THE INVITATION TO TENDER AND FROM IMPORTING DIRECTLY .
64THE WIDE DEFINITION OF THE CATEGORY OF BENEFICIARIES BY REGULATION NO 2900/77 TAKES ACCOUNT OF THE FACT THAT MANY MEAT PROCESSORS ARE IN THE HABIT OF USING COMMERCIAL INTERMEDIARIES FOR THEIR IMPORTS .
65FURTHERMORE THE COMMISSION WAS UNDER AN OBLIGATION WHEN IT ORGANIZED THE SYSTEM IN QUESTION TO ABIDE BY THE PRINCIPLES OF EQUAL ACCESS TO THE GOODS AND EQUALITY OF TREATMENT OF ALL THE POTENTIAL PURCHASERS .
66FINALLY ARTICLE 11A OF REGULATION NO 585/77, AS WORDED IN REGULATION NO 2901/77, EXPRESSLY PROVIDED IN PARAGRAPH ( 5 ) THEREOF THAT THE IMPORTER SHALL UNDERTAKE EITHER TO CARRY OUT HIMSELF THE PROCESSING REFERRED TO IN THE BASIC REGULATION OR HAVE IT CARRIED OUT IN HIS OWN RESPONSIBILITY .
67IT IS CLEAR FROM THE NEW ARTICLE 14 ( 1 ) ( A ) OF REGULATION NO 805/68 THAT THE IMPORT SYSTEM UNDER TOTAL SUSPENSION OF THE LEVY IS ONLY INTENDED TO FURTHER THE MANUFACTURE OF PRESERVED FOOD OF A SPECIFIC KIND .
68IT IS NOT DENIED THAT THE ECONOMIC OBJECTIVE FOR WHICH THIS SPECIAL SYSTEM WAS CREATED BY THE ORIGINAL ARTICLE 14 OF REGULATION NO 805/68 AND KEPT IN BEING, WITH NEW RULES, BY THE AMENDED VERSION OF THE SAME PROVISION, IS TO PROTECT THE COMPETITIVENESS OF THE PROCESSING INDUSTRY VIS-A-VIS COMPETITORS WHO ARE ESTABLISHED OUTSIDE THE COMMUNITY AND AS SUCH ENJOY THE BENEFIT OF WORLD MARKET PRICES .
69ALTHOUGH THE AIM OF THE NEW VERSION OF ARTICLE 14 IS TO MAKE THIS BRANCH OF INDUSTRY BEAR ITS SHARE OF THE COSTS OF MARKETING THE SURPLUS STOCKS OF BEEF AND VEAL IN THE COMMUNITY BY MAKING ' ' LINKING ' '
OBLIGATORY, IT IS NEVERTHELESS A FACT THAT THE ADVANTAGE DERIVED FROM THE TOTAL SUSPENSION OF THE LEVY ON THE QUANTITIES IMPORTED FROM NON-MEMBER COUNTRIES UNDER THIS SYSTEM MUST BE RESERVED FOR THE BENEFICIARIES DEFINED BY THE COUNCIL REGULATION .
70IT APPEARS THEREFORE THAT REGULATION NO 2901/77, WHICH ADDS ARTICLE 11A TO REGULATION NO 585/77, IS INCONSISTENT WITH THE OBJECTIVE OF THE NEW ARTICLE 14 OF THE BASIC REGULATION IN THAT IT GIVES PERSONS OR UNDERTAKINGS UNCONNECTED WITH THE SECTOR OF INDUSTRY FOR WHICH THE BENEFIT OF THE TOTAL SUSPENSION OF THE LEVY WAS TO BE RESERVED BY THE NEW ARTICLE 14 ( 1 ) ( A ) OF REGULATION NO 805/68 THE RIGHT TO TAKE ADVANTAGE OF THIS SPECIAL IMPORT SYSTEM .
71THE COMMISSION ' S ARGUMENT THAT IT IS UNDER A DUTY TO TREAT ALL POTENTIAL IMPORTERS EQUALLY CANNOT BE UPHELD SEEING THAT THE SPECIFIC AIM OF SUSPENDING THE LEVY AS PROVIDED FOR IN ARTICLE 14 OF REGULATION NO 805/68 IS TO GIVE FOR PARTICULAR ECONOMIC REASONS AN ADVANTAGE TO ONE BRANCH OF THE FOOD INDUSTRY .
72SIMILARLY THE COMMISSION ' S ARGUMENT THAT MANY PROCESSORS ARE OBLIGED TO HAVE RECOURSE TO THE IMPORT TRADE IN ORDER TO MEET THEIR REQUIREMENTS IS IRRELEVANT IN VIEW OF THE FACT THAT THE MINIMUM QUANTITY ACCEPTED FOR THE PURCHASE OF MEAT FROM THE INTERVENTION AGENCIES IS 5 TONNES WITH THE RESULT THAT EVEN SMALL PROCESSING UNDERTAKINGS ARE ABLE TO TAKE ADVANTAGE OF THE SYSTEM IN QUESTION AND MOREOVER OTHER LEGAL STEPS COULD HAVE MET ALL THE PRACTICAL REQUIREMENTS IN SUCH CASES WITHOUT EXCESSIVELY ENLARGING THE CATEGORY OF PERSONS BENEFITING FROM THE SYSTEM .
73IT SHOULD THEREFORE BE HELD THAT THE COMMISSION HAS PREVENTED THE SPECIAL SYSTEM PROVIDED FOR IN THE NEW ARTICLE 14 ( 1 ) ( A ) OF REGULATION NO 805/68 FROM ATTAINING ITS OBJECTIVE BY ALLOWING AN INDETERMINATE NUMBER OF INTERMEDIARIES TO TAKE ADVANTAGE OF THEM .
74THE APPLICANT, WITH THE SUPPORT OF THE ITALIAN GOVERNMENT, ALSO SUBMITS IN THIS CONTEXT THAT THE OPERATION OF THE ' ' LINKING ' '
MECHANISM HAS BEEN DISTORTED BY THE FACT THAT THE MEAT BOUGHT FROM THE INTERVENTION AGENCIES UNDER THIS SYSTEM MAY BE USED BY THE PURCHASER FOR ANY PURPOSE HE LIKES, SINCE IT IS ONLY THE MEAT IMPORTED FREE OF THE LEVY WHICH HAS TO BE USED FOR THE PRESERVED FOOD INDUSTRY .
75THUS INTERMEDIARIES WHO DO NOT CARRY ON BUSINESS IN THE PROCESSING SECTOR ARE ABLE TO REAP A SUBSTANTIAL PART OF THE BENEFIT TO BE DERIVED FROM THE SUSPENSION OF THE LEVY ON IMPORTED MEAT BY TRANSFERRING THAT BENEFIT TO THE MEAT FROM THE INTERVENTION AGENCIES WHICH THEY ARE FREE TO DISPOSE OF AS THEY LIKE .
76IT CANNOT BE DENIED THAT THE ABSENCE OF ANY CONDITION THAT MEAT BOUGHT FROM THE INTERVENTION AGENCIES UNDER THE ' ' LINKING ' '
SYSTEM IS TO BE USED FOR A SPECIFIC PURPOSE MAY IN FACT DISTORT THE FUNCTIONING OF THE MECHANISM, SINCE, AS A RESULT OF A DEFINITION OF THE CATEGORY OF BENEFICIARIES WHICH IS TOO WIDE, MANIPULATIONS OF THE PRICES OF THIS MEAT, WHICH CANNOT BE SUPERVISED, MAY BE EFFECTED BY PERSONS WHO DO NOT HAVE A DIRECT INTEREST IN THE PROCESSING INDUSTRY AS FAR AS CONCERNS, ON THE ONE HAND, MEAT IMPORTED FREE OF THE LEVY FOR PROCESSING AND, ON THE OTHER HAND, MEAT FROM INTERVENTION STOCKS WHICH CAN BE DISPOSED OF WITHOUT RESTRICTION AND MAY BE UNSUITED FOR SUCH A USE .
77THIS FREEDOM AVAILABLE TO THE BUYER MAY IN FACT, IN THE PARTICULAR CIRCUMSTANCES, HAVE PREVENTED THE SUSPENSION OF THE LEVY AS PROVIDED FOR IN ARTICLE 14 OF REGULATION NO 805/68 FROM ACHIEVING THE OBJECTIVE WHICH THAT COUNCIL REGULATION SOUGHT TO ATTAIN .
THE SUBMISSION THAT THE SYSTEM INTRODUCED BY THE COMMISSION HAS AN EFFECT ON THE LEVEL OF THE PRICES OF MEAT SOLD BY INTERVENTION AGENCIES TO REDUCE STOCKS IN THE CONTEXT OF THE ' ' LINKING ' '
SYSTEM
78THE APPLICANT SUBMITS THAT THE SYSTEM OF INVITATIONS TO TENDER, TAKING INTO ACCOUNT THE RULES ADOPTED BY THE COMMISSION, HAS LED TO AN EXCESSIVELY HIGH PRICE BEING FIXED FOR MEAT SOLD BY INTERVENTION AGENCIES TO REDUCE STOCKS WHICH ARE TO BE BOUGHT UNDER THE ' ' LINKING ' '
SYSTEM BY PURCHASERS WISHING TO BENEFIT FROM IMPORTING WITH SUSPENSION OF THE LEVY MEAT ORIGINATING IN NON-MEMBER COUNTRIES .
79CONSEQUENTLY THE MINIMUM PRICE FIXED BY THE COMMISSION IN THE CONTESTED DECISION WAS CONSIDERABLY HIGHER THAN THE NORMAL PRICE OF MEAT SOLD BY INTERVENTION AGENCIES TO REDUCE STOCKS AND THEREFORE IT IN FACT OFFSET TO AN APPRECIABLE EXTENT THE ADVANTAGE DERIVED FROM SUSPENDING THE LEVY AS PROVIDED FOR IN THE COUNCIL REGULATION .
80THUS THE ADVANTAGE PROVIDED FOR THE PROCESSING INDUSTRY HAS BEEN SWITCHED FOR THE BENEFIT OF AN OPERATION INTENDED TO BRING ABOUT A REDUCTION OF STOCKS OF MEAT HELD BY THE INTERVENTION AGENCIES AT A HIGHER PRICE THAN THE PRICE NORMALLY ADOPTED FOR REDUCING STOCKS .
81THIS ARGUMENT HAS THE SUPPORT OF THE ITALIAN GOVERNMENT WHICH DESCRIBES THE RESULTS OF THE INVITATION TO TENDER IN QUESTION AS ' ' ABSURD ' '
AND POINTS OUT THAT A SYSTEM OF INVITATIONS TO TENDER WHICH FORCES UP PRICES CANNOT BE RECONCILED WITH THE OBJECTIVES OF THE SPECIAL SYSTEM APPLICABLE TO IMPORTING MEAT FOR PROCESSING WITH THE SUSPENSION OF THE LEVY .
82THE COMMISSION DEFENDS THE SYSTEM OF INVITATIONS TO TENDER BY SUBMITTING THAT ACCOUNT HAD TO BE TAKEN AT THE RELEVANT TIME OF A DIFFICULT SITUATION ON THE COMMUNITY MARKET, CHARACTERIZED BY SURPLUS STOCKS OF FORMIDABLE DIMENSIONS, AND THAT THE AIM OF THE ' ' LINKING ' '
SYSTEM CONSISTS IN FINDING A PROPER BALANCE BETWEEN MEETING THE REQUIREMENTS OF THE PROCESSING INDUSTRIES AND TAKING INTO CONSIDERATION THE GENERAL MARKET CONDITIONS WITHIN THE COMMUNITY, THE MECHANISM OF THE INVITATION TO TENDER BEING THE BEST WAY OF FINDING THE POINT OF EQUILIBRIUM BETWEEN THESE INTERESTS .
83THE INTRODUCTION OF THE MECHANISM OF AN INVITATION TO TENDER FOR QUANTITIES OF MEAT WHICH HAD TO BE BOUGHT BY IMPORTERS UNDER THE ' ' LINKING ' '
SYSTEM CANNOT BE CHALLENGED IN ITSELF, SINCE THIS SYSTEM IS OF SUCH A KIND AS TO GUARANTEE, BY MEANS OF THE COMPARISON OF THE TENDERS WHICH THOSE QUALIFIED TO DO SO HAVE SUBMITTED, THE DISPOSAL OF STOCKS HELD BY INTERVENTION AGENCIES ON THE BEST POSSIBLE TERMS, AT A PARTICULAR POINT IN TIME, TAKING INTO ACCOUNT THE PROFITABILITY OF THE UNDERTAKINGS CONCERNED .
84HOWEVER IT HAS TO BE ACKNOWLEDGED THAT IN THIS PARTICULAR CASE THE NORMAL OPERATION OF THIS MECHANISM HAS BEEN UPSET AS A RESULT OF EXTRANEOUS FACTORS, NAMELY ALLOWING COMPETITORS TO PARTICIPATE IN THE INVITATION TO TENDER WHOSE INTERESTS DIFFER FROM THOSE OF THE PROCESSING INDUSTRY TO WHICH, ACCORDING TO ARTICLE 14 OF THE BASIC REGULATION, THE BENEFIT OF IMPORTING FREE OF THE LEVY WAS TO BE RESERVED, AS HAS BEEN SHOWN ABOVE .
85THE FACT THAT THE MINIMUM PRICE FIXED BY THE COMMISSION ON THE BASIS OF THE OUTCOME OF THE TENDERS SUBMITTED IN ANSWER TO THE INVITATION TO TENDER REACHED A VERY MUCH HIGHER LEVEL THAN THE NORMAL PRICE OF MEAT SOLD BY THE INTERVENTION AGENCIES TO REDUCE STOCKS IS DUE TO THESE FACTORS .
86IT MUST THEREFORE BE ACKNOWLEDGED THAT THE OBJECTION BY THE APPLICANT AND THE ITALIAN GOVERNMENT THAT THE ABNORMALLY HIGH LEVEL OF THIS PRICE IN FACT OFFSET PARTIALLY AN ADVANTAGE THAT THE COUNCIL HAD INTENDED, FOR SPECIFIC ECONOMIC REASONS, TO GIVE TO THE PROCESSING INDUSTRY IS JUSTIFIED .
87CONSEQUENTLY THE SYSTEM ORGANIZED BY THE COMMISSION FOR THE PURPOSE OF IMPLEMENTING THE NEW ARTICLE 14 OF REGULATION NO 805/68 MUST ALSO BE REGARDED FOR THIS REASON AS CONTRARY TO WHAT THIS REGULATION ANTICIPATED .
88THE APPLICANT ALSO SUBMITS IN THIS CONTEXT THAT THE FIXING BY THE COMMISSION OF DIFFERENT MINIMUM PRICES FOR THE VARIOUS MEMBER STATES DISCRIMINATES BETWEEN TRADERS DEPENDING ON WHERE THEIR UNDERTAKINGS ARE SITUATE .
89THUS, AS THE COMMISSION HAS WITH GOOD REASON EXPLAINED, THE OBJECT OF FIXING DIFFERING MINIMUM PRICES AS SET OUT IN THE ANNEX TO THE CONTESTED DECISION IS TO TAKE ACCOUNT OF THE REGIONAL DIFFERENCES, FOR BOTH ECONOMIC AND MONETARY REASONS, BETWEEN THE MARKETS OF THE VARIOUS MEMBER STATES SO AS TO ARRIVE AT A FAIR APPORTIONMENT OF THE QUANTITIES OF MEAT MADE AVAILABLE UNDER THE SPECIAL SYSTEM INTRODUCED BY ARTICLE 14 OF REGULATION NO 805/68 BETWEEN THE PROCESSING INDUSTRIES OF THE DIFFERENT REGIONS OF THE COMMUNITY .
90THEREFORE THIS OBJECTION MUST BE REJECTED .
SUBMISSIONS BASED ON CERTAIN FEATURES OF THE ' ' LINKING ' '
SYSTEM RELATING TO THE QUANTITIES INVOLVED
91THE APPLICANT CHALLENGES CERTAIN FEATURES OF THE ' ' LINKING ' '
SYSTEM RELATING TO THE QUANTITIES INVOLVED WHICH FEATURES ARE CONTAINED IN THE VARIOUS MEASURES FORMING THE BASIS OF THE CONTESTED DECISION .
92IN THE APPLICANT ' S VIEW THE COMMISSION ARBITRARILY FIXED IN THE ANNEX TO REGULATION NO 2901/77 THE RATIO BETWEEN THE QUANTITIES OF INTERVENTION MEAT AND OF MEAT IMPORTED FREE OF THE LEVY AND THE MANNER IN WHICH IT FIXED IN THE NOTICES OF INVITATIONS TO TENDER THE TONNAGES OF MEAT HELD BY THE INTERVENTION AGENCIES RELEASED UNDER THE SAME SYSTEM WAS EQUALLY ARBITRARY .
93THE APPLICANT ALSO CRITICIZES THE FACT THAT SECTION 3 OF THE GENERAL NOTICE OF PERIODIC INVITATIONS TO TENDER LAYS DOWN THAT THE QUANTITY FOR SALE SHALL RELATE TO A QUANTITY, FOR EACH TENDERER, OF NOT LESS THAN FIVE TONNES AND NOT MORE THAN 100 TONNES WHEREAS IN ITS VIEW THE UNDERTAKINGS SHOULD HAVE BEEN ALLOWED TO SUBMIT TENDERS CORRESPONDING TO THEIR ACTUAL PROCESSING CAPACITY .
94FINALLY THE APPLICANT COMPLAINS OF THE ARBITRARY WAY IN WHICH THE QUANTITIES RELEASED BY THE INVITATION TO TENDER OF 13 JANUARY 1978 WERE DETERMINED .
95PLACING AN UPPER LIMIT ON THE QUANTITIES OF INTERVENTION MEAT WHICH MAY BE BOUGHT BY ONE SUCCESSFUL TENDERER CANNOT BE CRITICIZED IN SO FAR AS IT ENABLES A FAIR APPORTIONMENT OF THE ADVANTAGE PROVIDED FOR THE BENEFIT OF THE PROCESSING INDUSTRY BY ARTICLE 14 OF REGULATION NO 805/68 TO BE MADE AMONG THE PERSONS FOR WHOM THAT ADVANTAGE WAS INTENDED .
96HOWEVER IT IS APPARENT IN THIS CASE THAT THE UPPER LIMIT CHOSEN BY THE COMMISSION HAD THE EFFECT, ON THE ONE HAND, OF CAUSING EXCESSIVE FRAGMENTATION OF THE IMPORT QUOTA AND ON THE OTHER HAND OF PLACING LARGE PROCESSING UNDERTAKINGS IN A PARTICULARLY UNFAVOURABLE POSITION, OWING TO THE FACT THAT THEY COULD ONLY BENEFIT TO A VERY SMALL EXTENT FROM THE OPPORTUNITIES FOR IMPORTING UNDER THE ' ' LINKING ' '
SYSTEM IN THE FORM IN WHICH THE COMMISSION HAS ORGANIZED IT .
97CONSEQUENTLY THE APPLICANT ' S OBJECTIONS TO THE EXCEPTIONALLY LOW CEILING FOR THE TONNAGE WHICH MAY BE PURCHASED BY ANY ONE SUCCESSFUL TENDERER APPEAR TO BE IN PRINCIPLE JUSTIFIED .
98ON THE OTHER HAND IT IS PROPER TO REJECT THE APPLICANT ' S OBJECTIONS TO THE PROPORTION OF MEAT IMPORTED FREE OF THE LEVY AND OF MEAT RELEASED BY INTERVENTION AGENCIES TO REDUCE STOCKS UNDER THE ' ' LINKING SYSTEM ' '
FIXED BY THE COMMISSION AS WELL AS THE CRITICISMS OF THE FIXING OF THE TONNAGE FOR WHICH TENDERS WERE INVITED FOR THE QUARTER WHICH WAS CONSIDERED AND OF THE APPORTIONMENT OF THE LATTER BETWEEN THE TWO BRANCHES OF THE PROCESSING INDUSTRY BETWEEN WHICH A DISTINCTION IS DRAWN IN THE BASIC REGULATION .
99IN FACT THESE STEPS REMAIN WITHIN THE DISCRETION IN ECONOMIC MATTERS WHICH THE COMMISSION LAWFULLY EXERCISES IN ADMINISTERING THE MARKET IN BEEF AND VEAL, TAKING INTO ACCOUNT THE DATE IN THE COUNCIL ESTIMATE AND THE QUARTERLY ESTIMATES PREPARED ON THIS BASIS WITH A VIEW TO MAINTAINING A REASONABLE BALANCE BETWEEN MEETING THE IMPORT REQUIREMENTS OF THE PROCESSING INDUSTRY AND THE NEED TO DISPOSE OF STOCKS OF BEEF AND VEAL ORIGINATING IN THE COMMUNITY .
100THE APPLICANT HAS NOT PRODUCED ANY CONVINCING EVIDENCE WHICH WOULD ENABLE THE COURT TO FIND THAT THE COMMISSION HAS EXCEEDED THE DISCRETION WHICH IT HAS IN THE FIELD .
THE AMOUNT OF PUBLICITY GIVEN TO THE TENDERING PROCEDURE
101THE APPLICANT ' S FINAL COMPLAINT IS THAT, CONTRARY TO WHAT IT CONSIDERS TO BE THE GENERAL PRACTICE IN CONDUCTING INVITATIONS TO TENDER, THE COMMISSION INSISTED ON BEING GIVEN A LIST OF ALL THE TENDERS RECEIVED, WITH THE NAMES OF THE TENDERERS, FOLLOWING THE OPENING OF THE INVITATION TO TENDER .
102THIS, IT IS CLAIMED WAS A BREACH OF THE PRINCIPLES THAT THE PROCEDURE FOR SELECTING SUCCESSFUL TENDERERS MUST BE OBJECTIVE AND JEOPARDIZE THE INDEPENDENCE OF THE BODY RESPONSIBLE FOR CHOOSING TO WHOM THE CONTRACTS SHOULD BE AWARDED .
103ALTHOUGH IT IS TRUE THAT MAINTAINING ANONYMITY IS A PRECAUTION, TAKEN UNDER NATIONAL AS WELL AS COMMUNITY LAW, IN CERTAIN KINDS OF INVITATIONS TO TENDER AND ESPECIALLY IN THOSE WHICH INVOLVE THE EXERCISE OF A DISCRETION IN RELATION TO INDIVIDUAL TENDERS, SUCH A PRECAUTION SEEMS TO BE UNNECESSARY IN THE CONTEXT OF AN INVITATION TO TENDER SUCH AS THE ONE IN THE CASE IN POINT, THE OUTCOME OF WHICH IS DECIDED WITH REFERENCE TO A PRICE FIXED BY THE COMMISSION AFTER AN EVALUATION OF ALL THE TENDERS RECEIVED, TAKING INTO ACCOUNT THE NEED FOR A FAIR APPORTIONMENT OF THE AGGREGATE QUANTITY AMONG THE UNDERTAKINGS OF THE DIFFERENT REGIONS OF THE COMMUNITY .
104THIS MUST BE MORE ESPECIALLY THE CASE IN THESE PROCEEDINGS AS THE IDENTIFICATION OF THE TENDERS BY NAME IS ESSENTIAL IN ORDER TO PREVENT THE SAME PERSON SUBMITTING TWO OR MORE TENDERS .
105THIS OBJECTION MUST THEREFORE BE REJECTED .
106FOR THE FOREGOING REASONS COMMISSION DECISION NO 78/258 MUST BE ANNULLED - TO THE EXTENT HEREINAFTER STATED - BECAUSE IT IS IN BREACH OF A RULE RELATING TO THE APPLICATION OF THE TREATY, NAMELY THE NEW ARTICLE 14 OF REGULATION NO 805/68, AND BECAUSE THE COMMISSION HAS MISUSED ITS POWERS WHEN LAYING DOWN CERTAIN RULES FOR THE IMPLEMENTATION OF THE ' ' LINKING ' '
SYSTEM PROVIDED FOR BY THE REGULATION QUOTED .
107FOR REASONS OF LEGAL CERTAINTY AND TAKING SPECIAL ACCOUNT OF THE ESTABLISHED RIGHTS OF THOSE PARTICIPANTS IN THE INVITATION TO TENDER WHOSE TENDERS HAVE BEEN ACCEPTED HAVING REGARD TO THE MINIMUM PRICE FIXED BY THE COMMISSION THE ANNULMENT MUST BE RESTRICTED TO THE SPECIFIC DECISION TO REJECT THE APPLICANT ' S TENDER WHICH STEMMED FROM COMMISSION DECISION NO 78/258 .
108CONSEQUENTLY 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 .
109IT 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 TERMS IN THE CASE OF MEAT OF THE QUALITIES IN QUESTION .
110THEREFORE THE APPLICANT ' S TENDER SHOULD BE REJECTED IF IT APPEARS IT WAS BELOW THAT PRICE LEVEL .
Decision on costs
COSTS
111UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
112THE DEFENDANT HAS FAILED IN THE MAIN IN ITS SUBMISSIONS .
113BY AN ORDER OF 22 MAY 1978 THE PRESIDENT OF THE COURT REJECTED THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES MADE BY THE APPLICANT AND RESERVED THE COSTS OF THE APPLICATION .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . ANNULS COMMISSION DECISION NO 78/258 OF 15 FEBRUARY 1978 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 1978 IN SO FAR AS THE DECISION AFFECTS THE APPLICANT ;
2 . ORDERS THE COMMISSION TO PAY THE COSTS OF THE PROCEEDINGS, INCLUDING THOSE OF THE INTERVENER, EXCEPT FOR THE COSTS OF THE APPLICATION FOR INTERIM MEASURES WHICH ARE TO BE BORNE BY THE APPLICANT .