3.

I still have to consider the question mentioned above which is very relevant to the decision as to costs, namely whether there were not after the judgment of 6 March 1979 in Case 92/78 had been delivered compelling reasons for the applicant to discontinue the present action — it had reached the stage of the written procedure before the filing of the reply on 30 July 1979 — which might give grounds for the inference that the applicant has caused the Commission to incur costs “unreasonably or vexatiously” (Article 69 (3) of the Rules of Procedure) and for that reason is to be ordered to bear those costs despite the success of its application. If I am correct that is the Commission's view, even though it has not specifically mentioned a decision as to costs within the meaning of Article 69 (3). It refers on this point to the direction at the end of the judgment in Case 92/78 that the Commission must reconsider the particular situation of the applicant and adopt another decision affecting it. In doing so it must however ensure that the processing industry is not allowed to buy meat from intervention agency stocks at a price lower than the price usually charged at the relevant time for reducing intervention agency stocks; therefore the applicant's tender is to be rejected if it becomes apparent that it was below that price level. However, this is exactly what happened in the case of the tender which the applicant submitted in response to the invitation to tender for the fourth quarter of 1978. At that time the usual selling price for beef held by the intervention agencies, that is for meat which does not have to be used for a specific purpose, was, pursuant to Commission Regulation (EEC) No 2836/77, 1291 units of account per tonne, whereas the applicant's tender was for only 970 units of account per tonne. It is accordingly evident that a declaration that the Commission decision relating to the fourth quarter of 1978 is void and reconsideration of the applicant's tender could not produce a favourable result for the applicant and that it must therefore seem pointless to continue the proceedings for a declaration that the Commission's decision of October 1978 is void. The applicant takes the view that the purport of the said judgment does not necessarily correspond to the Commission's interpretation. It was therefore perfectly reasonable to continue the present action after that judgment was delivered in order to obtain precise clarification of the question as to the examination which the Commission had to undertake after the annulment of its decision of October 1978. It must in particular not be overlooked that in the judgment in Case 92/78 the Commission was directed to reconsider the situation of the applicant with due regard to the grounds of the judgment. In this connexion it is relevant that exception was taken in the grounds of the judgment to the absence of any condition that meat brought from the intervention agencies under the “linking” system is to be used for a specific purpose and to the quantitative restriction stipulated for each tender, that is the fact that the processing capacities of large undertakings were disregarded. It must accordingly be accepted that in reconsidering the applicant's situation the limitation of the amount of intervention meat to the 100 tonnes stipulated in the invitation to tender could not be retained. Furthermore, the lower price limit for the sale of intervention meat could only be fixed taking into account other sales to processing undertakings and not sales of meat the use whereof is unrestricted. Since, however, meat from intervention stocks was sold at that time to processing undertakings at a price corresponding to the price offered by the applicant in its tender (950 units of account per tonne), it was by no means impossible but in fact extremely likely that after the annulment of its decision and reconsideration of the applicant's tender the Commission might have reached a decision favourable to the latter. As far as this dispute as to the interpretation of the judgment in Case 92/78 is concerned one might ask, as the Commission has done, whether the correct method of settling it was not the special procedure laid down for that purpose in Article 102 of the Rules of Procedure. It must however be conceded that this could scarcely have been a reason for discontinuing during the written procedure the action which now concerns us; at best a stay of proceedings until the delivery of a judgment interpreting the judgment in Case 92/78 might have been contemplated. The pursuit of the present proceedings could not then have been regarded as improper from the point of view of the legal costs. If the abovementioned dispute as to the interpretation of the judgment in Case 92/78 is to be settled in the present case the observation is surely of importance that, although the judgment in that case directs the Commission to reconsider the situation of the applicant with due regard to the grounds of that judgment, the decision was declared void only in so far as it affected the applicant, the remainder thereof remaining unaffected. In principle therefore there must be doubt as to whether a correct implementation of the judgment could have led to the subsequent creation of a situation which in the opinion of the Court would in fact have conformed wholly to the system. It is in particular impossible to avoid the fact that at that time tenders were invited for the sale from intervention stocks not of meat intended for processing but of meat suitable for unrestricted use and that specific tenders were submitted for that purpose. However, a price level similar to that which usually applies to special purchases of intervention meat which has been stored for some time and is only suitable for processing could not of course be envisaged for such meat of relatively high value. Furthermore, it must not be forgotten that the Court at the end of its judgment in Case 92/78 only states that the applicant's tender is to be reconsidered. Consequently, the Commission must start by considering the amounts which are mentioned in the tender in conformity with the conditions of the invitation to tender. It cannot, on the other hand, earmark for the award completely different quantities, as might happen after the system had been modified and taking into account solely the capacities of processing undertakings — that is, excluding dealers. Furthermore, it is not to be overlooked that in the judgment in Case 92/78 the Court acknowledged, on the one hand, that there were no grounds for challenging the invitation to tender, that is, a kind of auction intended to achieve the best possible terms and also stressed, on the other hand, that it is right that the processing industry should participate, by means of the “linking” system, in the solution of the problems connected with the sale of surplus beef. It is accordingly clear that with the special arrangements prices may be sought for meat held by the intervention agencies which are above the price level for other sales. That also means — precisely because, as the Commission has shown, there were never any problems in the case of sales of intervention meat specifically intended for processing at a price fixed in advance, even when larger quantities were sold — that the processing industry has legitimately participated in the sale of other meat held by the intervention agencies, that is of meat for which naturally, having regard to the wide range of uses and the shorter period in store, higher prices have to be charged. If it was intended to proceed in any other way the processing industry would be afforded an unjustified dual advantage, namely imports free of levy and the purchase of intervention meat on particularly favourable terms. Finally, it is also significant that the Court in its judgment mentions in connexion with its direction to the Commission to reconsider the applicant's situation — which if tenders submitted by dealers are disregarded might lead to a minimum price lower than that fixed in the decision — a lower limit which is determinative in each case. The selling price must not be below the price level which usually applies to sales from intervention agency stocks. According to the wording of the relevant paragraphs of the judgment (106 to 110) this certainly cannot mean — precisely because reference is made to a price charged during a specific period — that in this connexion an artificial price, which would still have to be established retroactively having regard to certain specific tenders, would be relevant. But having regard to those aspects of the “linking” system which the Court has approved it seems to be impossible to consider in this connexion prices which were from time to time charged for special sales from intervention stocks effected over a short period — whether for processing, for social purposes or for export. On the contrary, the Court clearly had in mind the price which was charged over a longer period for regular sales of meat from intervention stocks and which, as I have already said, having regard to the range of uses and period in store of that meat, must of necessity be above the price level ruling for special sales. Moreover, there is one piece of evidence in support of this taken from Case 92/78. In that case the Commission was asked about a number of prices (cf. the Registrar's letter of 9 October 1978) and in this connexion no-one doubted that it is precisely the selling price of 1291 units of account per tonne which is to be regarded as the usual selling price for intervention meat. In view of the foregoing there is no doubt that the rejection of the applicant's tender for the fourth quarter of 1978 was valid and that consequently reconsideration of the applicant's situation after the annulment of the Commission's decision of October 1978 would secure no advantage for it. Taking into consideration the differing views on the interpretation of the judgment in Case 92/78 which have given rise to argument in the instant case I would however think that we are not confronted with an interpretation which is so obvious that the applicant's interest in pursuing the proceedings would have to be completely denied, so that the further prosecution of the action cannot therefore be regarded as improper. For that reason there should not be any order as to costs to the detriment of the applicant relating to the period subsequent to the lodging of the reply.