1.

Of the grounds for the inadmissibility of the application the most important is that of failure to observe the time-limit. In this connexion the Commission expressed the view that, in the case of a tendering procedure such as the one here, which terminates in a Commission Decision and which in accordance with Article 13 of Regulation No 216/69 and with 6 (d) of the abovementioned general notice of periodic invitations to tender provides for the tenderers to be notified individually of the result of their respective tenders, the period for instituting proceedings begins to run from receipt of such notification where it is effected before the publication of the Commission Decision which, under Article 191 of the EEC Treaty, is not necessary for that decision to take effect. Since the individual notification in this case was made on 5 February 1979 it must be considered that the lodging of 03044the application is out of time, even having regard to the extension on account of distance under Article 81 of the Rules of Procedure. On the other hand the applicant relies on Article 81 (1) of the Rules of Procedure which states: “The period of time allowed for commencing proceedings against a measure adopted by an institution shall run from the day following the receipt by the person concerned of notification of the measure or, where the measure is published, from the 15th day after publication thereof in the Official Journal of the European Communities”. This must be viewed as something approaching a principle of most favoured treatment in accordance with which, where a contested decision is not merely published, although publication is not required, but also individually notified to the persons concerned, the later of the dates must be taken for the purposes of instituting proceedings. As the Commission acknowledges the application was lodged in due time after the publication of the Commission Decision. If that principle were not to be generally recognized it would anyhow be necessary in this case to have regard to the publication of the Commission Decision. The notification issued by the Bundesanstalt to the applicant was in particular not only incomplete, in so far as an important factor, the minimum price fixed by the Commission, was lacking; there was no notification at all of a Commission Decision since the decision was only adopted on 30 January 1979 and the communication from the Bundesanstalt is dated 29 January. Finally the communication of the Bundesanstalt refers to a decision of the Management Committee for Beef and Veal and not to a Commission Decision. In interpreting Article 81 of the Rules of Procedure, which is certainly not entirely clear, I consider it necessary to assume that it was not intended in the Rules of Procedure to depart in principle from the arrangements laid down in the Treaty. In any event the purpose of Article 81 is to establish clearly when the period for instituting proceedings begins to run and, where publication in the Official Journal is a requirement, to provide an extension in view of the fact that a certain time is necessary for delivery of the Official Journal in the Member States and that such delivery takes place at different times. Accordingly the decisive provision is the third paragraph of Article 173 of the EEC Treaty which reads: “The proceedings provided for in this article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be”. It is accordingly clear that here “notification” is to be understood as “publication”. In accordance with that provision however it may in fact be taken — that is how the words “as the case may be” are to be interpreted — that it does not indicate something in the nature of the principle of most favoured treatment; instead it is clear that it is the time of notification which is relevant when notification is an important factor in the applicability of a measure and that with regard to individual decisions in principle the time of their receipt is the decisive element. It must also be recognized that that interpretation is indicated by common sense. Accordingly the Commission's view should be upheld when it states that it is entirely sufficient to meet the need for the protection of legal rights if the period for commencing an action is calculated from the time of receipt of an individual notification. On the other hand if, on the basis of “most favoured treatment” the period were permitted to run from the time of a subsequent publication which was not obligatory the frequent delays in the publication of measures whose publication is not obligatory would often lead to a considerable extension of the period for commencing proceedings or indeed to periods which had already expired starting to run again which certainly would not serve the ends of legal certainty. Furthermore if the applicant's view were upheld the Commission might be tempted, in order to avoid these consequences, to refrain from the publication of such measures which is likewise contrary to the interests of traders. However if the interpreation of the Treaty and of the Rules of Procedure favoured by the Commission is approved in principle it further remains to ascertain whether in this case the notification received by the applicant is sufficient to meet the requirements which must be fulfilled for the period for commencing proceedings to start running. In this connexion it may be presumed that notification of the measure in its entirety is not required; that is required as a condition for measures to take effect, within the meaning of Article 191 of the EEC Treaty, only in relation to the notification of decisions to those whom they are addressed, which in cases like this are the Member States. In the case of third parties who are affected it should be sufficient for causing the period for instituting proceedings to start to run that such parties are officially notified — not necessarily by the actual authority taking the decision but alternatively by an agency — of the essential contents, specifically relevant to them, of the measure so that they are able to decide whether they wish to institute proceedings before the Court of Justice. I may refer here to Article 19 of the Protocol on the Statute of the Court of Justice of the EEC in accordance with which a contested measure may be lodged even after the expiry of the period for commencing proceedings, which certainly means that the time from which the period begins is not dependent on a full acquaintance with the measure. In this case it may also be pointed out that, in the General notice of periodic invitations to tender (as also in Article 13 of Regulation No 216/69) it is expressly provided that tenderers shall be informed without delay by the intervention agency of the outcome of their participation in the invitation to tender. There appears to me no doubt that in this case the communication sent to the applicant by the Bundesanstalt must suffice. In this connexion it certainly cannot be objected that that communication refers to a decision of the Management Committee for Beef and Veal and that it is dated 29 January whilst the formal Commission Decision was only adopted on 30 January 1979. This is explained, as we have heard, by the fact that the outcome of the consultations in the Management Committee for Beef and Veal are transmitted as quickly as possible to the national authorities to enable them without delay to begin preparation of the documents notifying those concerned. At any rate there are no grounds for believing that the applicant, who is fully conversant with the tendering procedure — a point which it has not disputed — was thereby misled; the applicant was certainly in no doubt that the measure in question merely constituted the views of the Management Committee for Beef and Veal and that the final decision in this matter would be taken by the Commission. Likewise I consider that it is not of decisive importance that it was merely stated in the notification that the applicant's tenders had not been accepted because they did not reach the level of the minimum prices and that the minimum prices themselves — other additional details do not appear in the Commission Decision — were not stated in the communication. In fact that did not constitute any impediment to instituting proceedings because a precise acquaintance with this feature of the decision was not material; the applicant in fact criticizes only the arrangement of the linking system as such. The objection of inadmissibility thus appears to me justified in principle; accordingly findings to this effect with regard to the time-limit should at any rate be incorporated in judgment. Nevertheless the question may still be raised whether in this case that objection requires the application to be dismissed as inadmissible. It must however be conceded that the provisions in question are not entirely clear and that the Court has not yet provided an interpretation of them. On that ground, and not least with regard to the content of the notification from the Bundesanstalt, one might well venture in the present case — on the basis, as it were, of the principles underlying Article 42 of the Protocol on the Statute of the Court of Justice of the EEC, that is to say, overrunning the time-limits given the existence of unforeseeable circumstances or of force majeure — to consider that the application was not out of time. I. accordingly refrain from proposing that the application should be dismissed as inadmissible merely on that ground and shall thus examine the remaining details of the case.