CELEX: C1997/094/35
Language: en
Date: 1997-03-22 00:00:00
Title: Action brought on 25 November 1996 by C. A. S. Succhi di Frutta SpA against the Commission of the European Communities (Case T-191/96)

22 . 3 . 97          EN                  Official Journal of the European Communities                                        No C 94/ 15
                                                   COURT OF FIRST INSTANCE
Action brought on 25 November 1996 by C. A. S. Succhi               administrative proceedings taken against that AIMA
di Frutta SpA against the Commission of the European                circular, the applicant obtained two notes sent by the
                         Communities                                defendant to AIMA in connection with the award of
                      ( Case T-191 /96 )
                                                                    contract to the two pre-selected undertakings . The note
                                                                    concerning the Italian successful tenderer in fact provided
                         ( 97/C 94/35 )                             for the possibility of replacement of the fruit indicated in
                                                                    the notice of tender by another kind of fruit. According to
                                                                    the applicant, that possibility had already been
                (Language of the case: Italian)                     acknowledged by decision of 14 June 1996, subsequently
                                                                    amended by the contested decision, which altered the
                                                                    replacement coefficient, but to a very limited extent and
                                                                    without retroactive effect, at a time when the period for
An action against the Commission of the European
                                                                    withdrawal of the peaches was coming to an end .
Communities was brought before the Court of First
Instance on 25 November 1996 by C. A. S. Succhi di Frut­
ta SpA, represented by Alberto Miele, of the Padua Bar,
Antonio Tizzano and Gian Michele Roberti, both of the               The applicant states that:
Naples Bar, and Dr Proc . Carlo Scarpa, of the Venice Bar,
with an address for service in Brussels at 36 Place du
Grand Sablon .                                                      — the Commission, only a few days before the expiry of
                                                                            the period for the submission of tenders, had already
                                                                            changed one of the essential aspects thereof,
The applicant claims that the Court of First Instance
should :
                                                                    — moreover, only one successful tenderer was thereby
                                                                            favoured, by means of a wholly unusual measure, in
                                                                            that it was not adopted in accordance with the
— annul the Commission decision of 6 September 1996
                                                                            procedures laid down for that purpose, even though
     amending the Commission decision of 14 June 1996                       they were followed in relation to subsequent decisions .
     concerning the supply of fruit juice and fruit jam for
     the peoples of Armenia and Azerbaijan;
                                                                    According to the applicant, that conduct was all the
                                                                    more unusual since the quantity of peaches offered as
— order the Commission to pay the costs .                           replacement for the apples/oranges was excessive and
                                                                    disproportionate : it took no account of the market values
                                                                    of the products concerned — in other words it disregarded
Pleas in law and main arguments adduced in support:                 the fact that the market value of peaches was certainly
                                                                    higher than that of apples .
The applicant, an Italian company engaged mainly in the
production from fresh fruit of puree and fruit juices or            In support of its two pleas in law, the applicant alleges
concentrates, objects to the manner in which the                    infringement of the notice of tender, of the principles of
Commission changed the conditions for a tendering                   transparency and equal treatment, and of Regulations
procedure for the supply of fruit juices and jam for the            ( EC ) No 2009/95 (2 ) and ( EC ) No 1975/95 ( 3 ). The
peoples of Armenia and Azerbaijan, in that it changed ex            contested decision is also, in its view, vitiated by misuse of
post facto one of the essential points in the notice, namely        powers and manifest error of assessment.
the type of product to be received by the successful
tenderer, on the basis of which interested parties, including
                                                                    ( 1 ) Commission Regulation ( EC ) No 228/96 of 7 February 1996
the applicant, decided whether and on what basis to                       on the supply of fruit juice and fruit jams intended for the
tender.
                                                                          peoples of Armenia and Azerbaijan ( OJ No L 30, 8 . 2 . 1996 ,
                                                                          p. 18 ).
                                                                    ( 2 ) Regulation ( EC ) No 2009/95 of laying down detailed rules for
The Regulation on which the tendering procedure was                       the free supply of agricultural products held in intervention
based ( ] ) envisaged the possibility of withdrawing from                 stocks to Georgia , Armenia , Azerbaijan, Kyrgyzstan and
                                                                          Tajikistan pursuant to Council Regulation ( EC ) No 1975/95
intervention stocks only two types of product: apples or                  ( OJ No L 196 , 19 . 8 . 1995 , p. 4 ).
oranges . The applicant, whose tender was not successful,           ( 3 ) Council Regulation ( EC ) No 1975/95 of 4 August 1995 on
learned, however, at the time of supply, that there were                  actions for the free supply of agricultural products to the
certain departures from the Community rules. Specifically,                peoples of Georgia, Armenia , Azerbaijan, Kyrgyzstan and
by circular of 21 March 1996 , AIMA, the Italian                          Tajikistan ( OJ No L 191 , 12 . 8 . 1995 , p. 2 ).
intervention agency, allowed the Italian successful tenderer
to withdraw fresh products other than those specified in
the notice of tender, in particular peaches. In national