CELEX: C1998/378/42
Language: en
Date: 1998-12-05 00:00:00
Title: Action brought on 12 October 1998 by Grandi Molini SpA against the Commission of the European Communities (Case T-165/98)

5.12.98              EN                  Official Journal of the European Communities                                  C 378/23
The applicant claims that the Court should:                         The applicant claims that the Court should:
                                                                    Ð annul, pursuant to Article 173 of the EC Treaty, the
Ð annul the applicant's staff report for the period 1993                decision of 24 September 1998 by which the
     to 1995;                                                           Commission fixed the minimum price for the sale of
                                                                        barley held by the Austrian intervention agency within
                                                                        the context of the invitation to tender opened by
Ð order the Commission to pay compenation for non-                      Commission Regulation (EC) No 1666/98;
     material damage in the amount of ECU 10 000.
                                                                    Ð order the Commission to pay compensation for the
Pleas in law and main arguments adduced in support:                     damage suffered in the interim by the applicant, in
                                                                        accordance with Articles 178 and 215 of the EC
                                                                        Treaty;
The applicant, an official on the technical and scientific
staff assigned to the Joint Research Centre at Ispra, states        Ð order the Commission to pay the costs of the
that at least until some time ago, his staff reports were               proceedings.
favourable, consistently acknowledging, in particular, his
professional abilities. However, as from the 1991 to 1993           Pleas in law and main arguments adduced in support:
staff report there began to appear negative comments with
regard to his character and his relations in the department,        The applicant company, which participated in the above
which were all the more serious in the overall assessment           invitation to tender and whose bid was rejected, takes
at the end of the staff report for the period 1993 to 1995.         issue with the fact that the Commission, through the
                                                                    contested decision, awarded the entire quantity subject to
                                                                    tender exclusively on the basis of the criterion of the
He claims that, moreover, the abovementioned report was
                                                                    lowest price', without, according to a fax sent by the
forwarded to him after the expiry of the period prescribed
                                                                    defendant on 29 September 1998, transport costs having
by the general provisions for giving effect to Article 43 of
                                                                    been taken into account in assessment of the tenders
the Staff Regulations.
                                                                    submitted.
In support of his claims, the applicant alleges, first of all,      In support of its contentions, the applicant argues that
that the general provisions for giving effect to Article 43         there has been a breach of Article 1(2) of Commission
of the Staff Regulations were infringed inasmuch as the             Regulation (EEC) No 2131/93 (1) along with an
report was late and the rules governing the complaints              infringement of the principle of non-discrimination and
procedure were not followed.                                        distortion of competition by reason of the illegality of
                                                                    Article 3(4) of Commission Regulation (EC) No 1666/
                                                                    98 (2), under which the defendant opened a standing
Secondly, the assessment contained in the report was                invitation to tender for the export of barley held by the
vitiated, in the applicant's view, by its manifest unfairness       Austrian intervention agency.
and by misuse of powers.
                                                                    It must be pointed out in this regard that under Article 7
                                                                    of Regulation (EEC) No 2131/93, transport costs are
                                                                    reimbursed by the intervention agency, which then charges
                                                                    them to the Community. The most favourable bid referred
                                                                    to in Article 1 cannot be represented solely by the price
                                                                    offered by those participating in the call for tenders for
  Action brought on 12 October 1998 by Grandi Molini                obtaining the cereals in question, but rather by that price
        SpA against the Commission of the European                  less transport costs in so far as both of these have an
                         Communities                                effect on Community finances. The applicant stresses in
                                                                    this regard that if, in the case of the consignment of barley
                       (Case T-165/98)
                                                                    in question, the Commission has subtracted the transport
                        (98/C 378/42)                               costs incurred for transport to Trieste from the price
                                                                    which the applicant had tendered, its actual bid would
                                                                    have been reduced by more than half. This means that if,
               (Language of the case: Italian)                      in respect of the price tendered by whoever was ultimately
                                                                    to be the successful tenderer, the transport costs were to
                                                                    be calculated to Rotterdam, as lies within the entitlement
An action against the Commission of the European                    of the successful tenderer, the bid accepted would be much
Communities was brought before the Court of First                   less favourable than that of the applicant company.
Instance of the European Communities on 12 October                  Consequently, the applicant, on the basis of the matters of
1998 by Grandi Molini SpA, represented by Wilma                     which it has cognisance, concludes that the contested
Viscardini DonaÁ, assisted by Mariano Paolin and                    decision was taken on the basis of bids which are not
Simonetta DonaÁ, of the Padua Bar, with an address for              comparable and thus allowed the contract to be awarded
service in Luxembourg at the Chambers of Ernest Arendt,             without being certain that the successful bid was the most
Rue Mathias Hardt.                                                  favourable.
 ---pagebreak--- C 378/24              EN                 Official Journal of the European Communities                                       5.12.98
The applicant accepts that the fact that a Member State                 by the applicants in respect of aid for distillation in
has no sea ports may make it necessary to finance the                   the 1982/1983 marketing year;
costs of transport between the place in which the cereals
the subject of the invitation to tender are situated and the
actual place of exit. That is not to say that this must             Ð order the European Commission, possibly also on the
happen automatically, but only in certain exceptional                   ground of unjust enrichment and/or by way of
cases. Consequently, the reason given in the penultimate                compensation for damage within the meaning of
recital in the preamble to Regulation (EC) No 1666/98,                  Article 178 of the Treaty, to pay the applicants a
justifying the appropriateness of financing such costs in              certain amount;
view of Austria's geographical position', appear to be too
abrupt. Luxembourg, which is the only other Community
country lacking a sea port, has never indicated any need
                                                                    Ð order the defendant to pay the cost.
for a similar exception to be provided. On the other hand,
the idea that, in those Member States which do not have
sea ports, the bids of competitors should be penalised by
higher transport costs is based on a conception still linked        Pleas in law and main arguments adduced in support:
to national markets. According to the applicant, the
defendant appears to forget that Austria now forms part
of a single territory for customs and commercial purposes.          The applicant wine-cellars in the present case contest the
                                                                    decision whereby the defendant refused to pay an amount
                                                                    due to them as Community aid for the 1982/1983
In conclusion, the applicant argues that the Community's            marketing year under the legislation in force concerning
assumption of all transport costs, irrespective of the port         preventive distillation in the wine sector. The applicants
in which the goods are to be loaded for export, authorises          state in this regard that the abovementioned aid was not
trade to be diverted towards the ports of northern Europe,          received as a result of an omission by the distillery which
to the detriment of those of the Mediterranean, thereby             had received the wine and that it was returned in full to
distorting competition even between the various ports and           the Commission itself as a result of the repayment of the
providers of services operating in each of those ports.             security lodged by AIMA, the intervention agency.
(1) OJ L 191, 31.7.1993, p. 76.
(2) OJ L 211, 29.7.1998, p. 12.
                                                                    The applicants challenge in the first place the defendant's
                                                                    argument that the aid concerned by Commission
                                                                    Regulation (EEC) No 2499/82 is payable to the distiller
                                                                    and not to the producers, since the provision of aid
                                                                    benefits, in the first place, distillers by enabling them to be
                                                                    compensated for the high buying-in price of the wine'. In
                                                                    their view, following perusal of that regulation and in the
Action brought on 12 October 1998 by Cantina Sociale di
                                                                    light of the general principles governing the system of aids
Dolianova and Others against the Commission of the
                                                                    in the wine sector, it is evident that the intended recipients
                    European Communities
                                                                    of the Community contribution are the producers
                       (Case T-166/98)                              supplying the wine. From that angle, it is clear that the
                                                                    scope of Council Regulation (EEC) No 2499/82, in
                        (98/C 378/43)
                                                                    conjunction with Article 11 of Regulation (EEC) No 337/
                                                                    79, is to pursue the general interest of the common market
                (Language of the case: Italian)                     in eliminating the production of low-quality wine within
                                                                    the Community, encouraging producers of low-quality
                                                                    wine to send it for preventive distillation by providing aid
An action against the Commission of the European                    enabling them to sell it at market prices.
Communities was brought before the Court of First
Instance of the European Communities on 12 October
1998 by Cantina Sociale di Dolianova, Cantina Sociale               In any event, the discretion enjoyed by the Member States
della Texenta, Cantina Sociale della Marmila U.V.A.,                as to the choice of modality provided for by Articles 9 and
Cantina Sociale di Santa Maria La Palma (formerly                   10 of Regulation (EEC) No 2499/82 cannot undermine its
Cantina Sociale della Riforma agraria di Alghero) and               purpose, as set out above. It is not possible to argue that
Cantina Sociale del Vermentino di Monti, represented by             the unlawful conduct of Distilleria Agricola Industriale,
Carlo Dore and Giovanni Dore, of the Cagliari Bar, with             which consisted solely in not providing AIMA with proof
an address for service in Luxembourg at the Chambers of             that payment of the price was made to the producers
Franco Colussi, 36 Rue de Wiltz.                                    (inasmuch as the full price was not paid), could to any
                                                                    extent have compromised the rights of the producers
The applicants claim that the Court should:                         themselves to receive such aid. In the view of the
                                                                    applicants, any interpretation to the contrary would entail
                                                                    a breach of the principle of equal treatment.
Ð declare unlawful Commission Decision VI B-I-3 M 4/
    97PVP of 31 July 1998, received by mail on 14 August
    1998, whereby it rejected the claim for payment sent