Judgment of the Court of First Instance (Third Chamber) of 24 September 1996. - Richco Commodities Ltd v Commission of the European Communities. - Emergency assistance given by the Community to the States of the former Soviet Union - Invitation to tender - Action for annulment - Admissibility - Action for damages - Admissibility. - Case T-491/93.



European Court reports 1996 Page II-01131



Summary



Keywords

1. Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Implementation of a loan granted by the Community to the Soviet Union and its constituent Republics ° Commission decision addressed to the borrower, refusing to recognize amendments made to contracts concluded between the agent designated by the borrower and an undertaking to which the contract is awarded as being in conformity with the applicable Community provisions ° Action brought by the undertaking ° Inadmissibility

(EC Treaty, Art. 173, fourth para.)

2. Actions for damages ° Separate from actions for annulment ° Action to have withdrawn an individual decision which has become definitive ° Inadmissibility ° Burden of proof ° Putting in issue of the Community' s liability ° Whether permissible

(EC Treaty, Arts 178 and 215, second para.)

Summary

1. In the implementation of a loan granted by the Community to the Soviet Union and its constituent republics in order to enable agricultural and food products and medical supplies to be imported, an undertaking awarded a contract for the supply of wheat is not directly concerned, within the meaning of the fourth paragraph of Article 173 of the Treaty, by a Commission decision addressed to the financial agent of the borrowing republic refusing to recognize amendments made to the contracts concluded between the contracting undertaking and the agent designated for that purpose by the borrowing republic as being in conformity with the applicable Community provisions, since that undertaking has a legal relationship only with the party with whom it contracts, namely the agent appointed to conclude purchase contracts, whilst the Commission has legal relations only with the party with whom it contracts, namely the financial agent of the borrowing republic, and the action of the Commission, whose role is merely to verify that the conditions laid down by the Community rules are fulfilled, does not therefore affect the legal validity of the aforementioned contracts.

It follows that the undertaking to which the contract is awarded does not have the right to bring proceedings for annulment of the decision in question.

2. The action for damages provided for by Article 178 and the second paragraph of Article 215 of the Treaty was intended to be an autonomous form of action with a particular purpose to fulfil within the system of remedies provided for, so that, in principle, the inadmissibility of a claim for annulment cannot entail the inadmissibility of a claim for damages for loss allegedly suffered as a result of the act whose annulment is sought. That is not the position, however, where a claim for damages is actually aimed at securing withdrawal of an individual decision which has become definitive and thus constitutes an abuse of process. The burden of proving such an abuse of process lies on the party pleading it.

That burden is not discharged by an objection of inadmissibility which simply asserts that the applicant is merely seeking to obtain, by way of damages, the same price as it would have obtained if, in the implementation of a loan granted by the Community, the Commission had recognized amendments to a commercial contract concluded by the applicant as being in conformity with the applicable Community provisions. Moreover, since the possibility that acts or conduct of the Commission or its officials or agents may cause damage to third parties cannot be dismissed, any person who claims to have been injured by such acts or conduct must have the possibility of bringing an action for damages, if he is able to establish the existence of damage caused by an illegal act or illegal conduct on the part of the Community. It follows that a claim for compensation for the pecuniary damage allegedly suffered by the applicant as a result of the Commission' s decision not to recognize the amendments to the contract as being in conformity with the said provisions must be declared admissible.