C-243/78

J U D G M E N T OF T H E C O U R T (SECOND CHAMBER) O F 5 MARCH 1980 l

Simmenthal S.p.A. v Commission of the European Communities

"Common organization of the market in beef and veal"

Case 243/78

Appiication for annulment — Interest in taking legal action — Events intervening during the proceedings — Application deprived of foundation — Prosecution of the action — Improper nature — Rejection (EEC Treaty, Art. 173)

If, in the light of events intervening A judgment of the court given in another during the proceedings, the applicant case between the same parties and should have recognized that its concerning a strictly similar question and application for annulment was devoid of the decision of the defendant institution foundation, it no longer had any interest adopted pursuant to that judgment may in prosecuting its action. In those constitute such events. circumstances the prosecution of that action is an abuse of process and the application must be dismissed.

APPLICATION for the annulment of Commission Decision No 78/940/EEC of 27 October 1978 fixing the minimum selling prices for frozen beef put up for sale by the intervention agencies in accordance with Regulation (EEC) N o 2900/77 and specifying the quantities of frozen beef for processing which may be imported under special terms in the fourth quarter of 1978 (Official Journal L 326, p. 14),

T H E C O U R T (Second Chamber)

composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

3. On 14 February 1977 the Council adopted Council Regulation N o 425/77 (c) Importation under total suspension amending Regulation No 805/68 of the levy shall be made conditional (Official Journal L 61, p. 1). on production of an import licence issued for a quantity falling within the limits laid down each quarter; it The situation on the beef and veal may be made conditional, as far as market which had for several years been necessary, on production of a characterized by a shortage accompanied purchase contract for frozen meat by a rise in prices, had then degenerated held by an intervention agency into a market price slump made worse by ("linking" system; new Article massive imports, and import 14 (3)). arrangements had to be adjusted to avoid a recurrence of similar situations; the Council therefore considered that certain special systems should be adapted so that 4. The Commission adopted detailed account might be taken in annual rules for the application of Council estimates of both the supplies available to Regulation No 425/77 in Commission the Community and the Community's Regulations Nos 585/77 and 597/77 of needs. It therefore amended inter alia 18 March 1977, the first on the system Article 14 of Regulation No 805/68 by of import and export licences for beef providing that frozen meat intended for and veal (Official Journal 1977 L 75, processing which qualified for impor- p. 5); the second laying down detailed tation under total suspension of the levy rules for the application of special import from then on only benefited from this arrangements for certain types of frozen exemption under new conditions: beef intended for processing (Official Journal 1977 L 76, p. 1); those regu- lations were themselves subsequently amended and completed by Commission (a) The Council, on a proposal from the Regulation No 1384/77 of 27 June 1977 Commission, before 1 December (Official Journal L 157, p. 16) and each year, shall draw up an estimate Commission Regulation No 2901/77 of of meat which may be imported 22 December 1977 (Official Journal under suspension of the levy. This L 338, p. 9) [They were subsequently estimate shall take account, on the replaced by Commission Regulations one hand, of the expected (EEC) Nos 571/78 and 572/78 of Community supplies of meat of a 21 March 1978 (Official Journal 1978 quality and type of cut suitable for L 78, p. 10 and p. 17)].

Those provisions stipulate that in order 1969 (I), p. 31); that regulation provides to qualify for total suspension of the levy inter alia that minimum selling prices in a the application for a licence or licences tendering procedure shall be fixed by the lodged by any one applicant must relate Commission, that if the tender is for less to a quantity corresponding to not less than the minimum price it shall be than five tonnes of bone-in meat and not refused and that the contract shall be more than 10% of the quantity fixed by awarded to the highest tender, provided the Commission, pursuant to the new that when several tenders at the same Article 14 of Regulation No 805/68 for price are received for the same quantity, the quarter during which the application the intervention agency shall divide the for a licence or licences is lodged (Article quantity available in agreement with the 3 or Regulation N o 1384/77). tenderers concerned or award it by balloting. Article 1 (2) of Regulation No 2900/77 refers to Regulation No 216/69 "subject to the special and derogating Moreover, applications for licences shall provisions laid down in this regulation". be considered only if they are made by a natural or legal person who for at least 12 months has been carrying on business in the meat and livestock sector and is Article 2 of Regulation No 2900/77 officially registered in a Member State provides that the intervention agencies (Article 1 of Regulation No 2901/77). shall issue partial invitations to tender every quarter "under the tendering system" and that a general notice of invitation to tender shall be published at the latest on the date of publication of 5. On 22 December 1977 the the first partial invitation to tender. Commission also adopted Regulation N o 2900/77 laying down detailed rules for the sale of beef held by the intervention agencies to enable the import with total suspension of the levy of frozen beef and Article 3 of the same regulation provides veal intended for processing (Official that tenders may be submitted only Journal L 338, p. 6). during the first ten days of each quarter. However, on the first occasion, they might be submitted only between 20 and 30 January 1978. Only tenders for a total As provided for in Article 1 (1) of that quantity of not less than five tonnes and regulation, importation with total not more than 100 tonnes, expressed as suspension of the levy shall be unboned meat, can be accepted. conditional upon the submission of a purchase contract for frozen meat held by an intervention agency, concluded in accordance with the said regulation. Article 1 (2) provides that the sale shall 6. On the basis inter alia of Regulations take place by way of tender pursuant to No 216/69, N o 2900/77 and No Articles 6 to 14 of Regulation N o 2901/77 the Commission published on 216/69 of the Commission of 4 February 13 January 1978 (Official Journal C 11, 1969 on detailed rules of application for p. 16) a "general notice of periodic the disposal of frozen beef and veal invitations to tender for the sale of bought in by intervention agencies frozen beef held by the intervention (Official Journal, English Special Edition agencies to enable the import with total

9. On 15 February 1978 the 13. On 6 October 1978 Simmenthal Commission adopted Decision No submitted to AIMA a tender for the 78/258/EEC fixing the minimum selling purchase of 100 tonnes of frozen prices for frozen beef put up for sale by unboned (bone-in) beef at a price of 950 the intervention agencies in accordance units of account per tonne. with Regulation (EEC) No 2900/77 and specifying the quantities of frozen beef for processing which may be imported 14. On 27 October 1978 the under special terms in the first quarter of Commission adopted Decision No 1978 (Official Journal L 69, p. 36). 78/940/EEC fixing the minimum selling prices for frozen beef put up for sale by the intervention agencies in accordance 10. On 23 February 1978 AIMA with Regulation (EEC) No 2900/77 and addressed to Simmenthal a decision of specifying the quantities of frozen beef refusal of its tender of 20 January since for processing which may be imported it did not come within the terms of the under special terms in the fourth quarter invitation to tender. of 1978 (Official Journal L 326, p. 14).

JUDGMENT OF 5. 3. 1980 — CASE 243/78

15. Article 1 (1) of that decision in the Government of the Italian Republic conjunction with the annex thereto fixes intervened in support of the conclusions the minimum selling prices for frozen of the applicant company, culminated in beef stored by the intervention agencies a judgment of the Court of Justice of which are to be adopted for invitation to 6 March 1979 in Case 92/78. tender No It P 4 in the following way:

SIMMENTHAL v COMMISSION

the price for reducing intervention import and export licences in the agency stocks usually charged at the beef and veal sector (Official Journal relevant time in the case of meat of the L 141, p. 13); qualities in question. The judgment went on to state that the applicant's tender (c) Regulation (EEC) No 1138/79 should be rejected if it appeared that it fixing the quantities of frozen beef was below that price level. intended for processing which may be imported on special conditions for the second and third quarters of 19. The Commission adopted on 19 1979 and repealing Regulations April 1979 and sent to the Italian (EEC) N o 2900/79 and (EEC) N o Government on 20 April 1979 a decision 535/79 (Official Journal L 141, "rejecting a tender submitted in answer p. 15). to an invitation to tender for frozen beef put up for sale by the intervention agencies in accordance with Regulation No 2900/77 for the first quarter of II — W r i t t e n p r o c e d u r e 1978".

1. Simmenthal lodged an application on The Commission, with reference to the 3 November 1978, pursuant to Articles judgment of 6 March 1979, states in the 173, 174 and 184 of the EEC Treaty, for recitals of the preamble to that decision a declaration that Commission Decision that the tender submitted by Simmenthal No 78/940/EEC of 27 October 1978 is in answer to the invitation to tender void and that Notice of invitation to mentioned in Decision No 78/258 is tender No It P 4 of 22 September 1978, lower than the price for reducing the General Notice of periodic intervention agency stocks usually invitations to tender of 13 January 1978, charged at the relevant time in the case Commission Regulation No 571/78 of of meat of the qualities in question and 21 March 1978 and Commission Regu- must therefore be rejected. lation No 2900/77 of 22 December 1977 are inapplicable.

(c) Order the Commission to pay the 5. After hearing the report of the costs. Judge-Rapporteur and the views of the Advocate General the Court decided to 2. The Commission relies on the open the oral procedure without any wisdom of the Court as to whether the preparatory inquiry. However, it asked application may be inadmissible, at least a question which it request the if, upon careful examination, it is found Commission to answer in writing and to · be designed to obtain an interpre- Simmenthal to answer at the hearing. tation of the judgment of the Court of 6 March 1979 in Case 92/78. 6. By an order of 7 November 1979 the Should the Court decide to give a ruling Court, pursuant to Article 95 (1) and (2) on the interpretation of the concept of of the Rules of Procedure decided to "price for reducing intervention agency assign the case to the Second Chamber. stocks usually charged at the relevant time", as used in the said judgment of 6 March 1979, it contends that the interpretation suggested by the applicant I l l — C o n c l u s i o n s of t h e p a r t i e s should be declared to be unfounded.

As far as the substance of the case is 1. The applicant claims that the Court concerned, the Commission states that it should: refers for all purposes to the considerations which it developed in its (a) Declare Commission Decision No defence in Case 92/78. 78/940/EEC of 27 October 1978 to be void within the meaning of Articles 173 and 174 of the EEC Treaty; IV — S u b m i s s i o n s a n d a r g u m e n t s of t h e p a r t i e s d u r i n g t h e written procedure (b) So far as necessary, declare inapp- licable within the meaning of Article 184 of the EEC Treaty: A — Admissibility

6 March 1979 in Case 92/78 admitted The applicant cannot therefore derive that the applicant company had an any advantage from this action; it has no interest in the annulment of the interest in taking action and its contested decision; "such interest application ought to be declared consists either in its being restored inadmissible. sufficiently by the Commission to its original position or in inducing the Commission to make suitable amendments in the future to the system of invitations to tender . . .". (c) The application was in fact lodged at the time for the purpose of defeating the plea of inadmissibility raised by the Commission in Case 92/78 and based on the complaint of delay. The applicant has (a) On the second point, it should be not attacked the decisions relating to the stated that the Commission has met the second and third quarters of 1978 but requirements mentioned in the judgment merely the one dealing with the fourth of the Court by adopting Regulations quarter, that is to say the first having any Nos 1136, 1137 and 1138/79. direct value for proving that the Commission's plea has no foundation. This finding is confirmed by the repeated joint applications for further time made in Case 92/78 by the two parties, who (b) With reference to the applicant were convinced that the judgment in that company being "restored sufficiently . . . case would be likely to rob these to its original position", the judgment proceedings of any significance. directed the Commission to reconsider the tender submitted in answer to invitation to tender No It P 1 and stated that that tender should be rejected if it appeared that it was below the price for (d) it is confirmed by the applicant reducing intervention agency stocks itself when, in its rejoinder, it confines usually charged at the relevant time in the subject-matter of its application to the case of meat of the qualities in the interpretation of the concept "price question. The usual price for reducing for reducing intervention agency stocks intervention agency stocks was at that usually charged at the· relevant time"; time 1 291 units of account (to be consequently, it is in fact requesting the precise, 1 290.87 units of account, Court to interpret a passage in its according to Annex II to Commission judgment of 6 March 1979. But Regulation (EEC) No 2836/77 of 19 proceedings for annulment cannot be December 1977 (Official Journal L 327, transformed into an application for the p. 11)). After the Commission had interpretation of a judgment. reconsidered Simmenthal's tender of 20 January 1978 it rejected it by a decision of 19 April 1979 since the price offered by Simmenthal was 1 091.26 units of 2. As far as the applicant is concerned, account. The price which Simmenthal it considers that its application is offered on 6 October 1978 in answer to unquestionably admissible. invitation to tender No It P 4 for the fourth quarter of 1978 was even lower, namely 950 units of account; the Commission could only reject that (a) There was no doubt as to its tender. admissibility when it was lodged at the

(e) The price "usually charged" to B — The substance which the Court referred is a price which the Commission should have fixed on the basis, on the one hand, 1. The applicant in its application ori­ of the Court's recommendation to ginating the proceedings has put forward take account of the grounds of its several submissions very similar to those judgment and, on the other hand, of used in support of its application in Case the price levels applied for meat put 92/78, which culminated in the Court's up for sale for a mandatory use judgment of 6 March 1979, for the (industrial use, for export to non- purpose of challenging Commission Member States, etc.). Decision N o 78/940/EEC itself and also the measures of general application upon which it is based, especially Regulations Nos 2900/77, 571/78 and 572/78. In the light of that judgment the applicant in its 2. The Commission takes the view that reply merely states that the parties are "price usually charged" should be not of the same mind as to the meaning understood as meaning the normal of the expression "the price for reducing selling price of stocks paid by traders intervention agency stocks usually who, at any time, and even irrespective charged" and that in this connexion the of other transactions, wish to buy meat following considerations should be borne held by the intervention agencies. That in mind: price, the level of which varies according to the different qualities of meat, is fixed by the Commission.

(a) The price usually charged cannot be the numerical amount, which is now merely an historical fact resulting from the sales effected when the (a) That interpretation is in keeping facts of the case occurred; with the principles of the "linking"

Decision

1 By an application lodged o n 3 N o v e m b e r 1978 pursuant to the second p a r a g r a p h of Article 173 of the E E C T r e a t y the applicant requests the C o u r t to declare Commission Decision N o 7 8 / 9 4 0 / E E C of 27 O c t o b e r 1978 fixing the minimum selling price for frozen beef put up for sale by the intervention agencies in accordance with Regulation ( E E C ) N o 2 9 0 0 / 7 7 and specifying

JUDGMENT OF 5. 3. 1980 — CASE 243/78

the quantities of frozen beef for processing which may be imported under special terms in the fourth quarter of 1978 (Official Journal L 326, p. 14) to be void.

2 By an application lodged on the same date pursuant to Articles 185 and 186 of the EEC Treaty and Articles 83 (1) of the Rules of Procedure the applicant requested the Court to suspend the effects of the decision forming the subject-matter of the principal application and also to suspend the application of the special arrangements for the importation of frozen meat intended for the processing industry for 1979. That application was refused by an Order of the President of the Court in Case 243/78 R of 29 November 1978 ([1978] ECR 2391).

3 It should be borne in mind that the Court, before which the same applicant instituted proceedings against Commission Decision N o 78/258 of 15 February 1978 adopted for the first quarter of 1978 in connexion with the special selling arrangements as provided for in Article 14 of Regulation N o 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187), as amended by Council Regulation N o 425/77 of 14 February 1977 (Official Journal L 61, p. 1), in its judgment of 6 March 1979 in Case 92/78 ([1979] ECR 777) found in favour of the applicant by declaring the contested decision to be void.

" T H E COMMISSION OF THE EUROPEAN COMMUNITIES

Having regard to the Treaty establishing the European Economic Community,

Having regard to Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal, as last amended by Council Regulation (EEC) No 425/77, and in particular Articles 7 (3) and 14 (4) (a) thereof,

Whereas Commission Decision No 78/258/EEC of 15 February 1978 fixed the minimum selling prices for frozen beef put up for sale by the intervention agencies in accordance with Regulation (EEC) No 2900/77 and specified the quantities of frozen beef for processing which may be imported under special terms in the first quarter of 1978;

Whereas following an application for annulment lodged by a tenderer whose offer could not be accepted, on the basis of the above-mentioned decision, the Court of Justice of the European Communities declared the decision in question to be void in so far as it affected the applicant;

Whereas consequently the Commission has to reconsider the applicant's situation and adopt another decision affecting it through the competent intervention agency;

JUDGMENT OF 5. 3. 1980 — CASE 243/78

2. The Italian Intervention Agency (AIMA) shall notify Simmenthal S.p.A. of the contents of this decision.

Article 2

This Decision is addressed to the Italian Republic."

6 Simmenthal has not lodged an application challenging that Commission decision but has conducted proceedings within the framework of the pending application challenging the decision relating to the invitation to tender for the fourth quarter of 1978.

7 The Commission in its defence lodged on 18 June 1979 states that Simmenthal's prosecution of its action is unjustified and serves no useful purpose since the amount offered in Simmenthal's tender in response to the invitation to tender for the fourth quarter, being 950 units of account per tonne, must a fortiori lead to the rejection of that tender. Since the present application is, moreover, only a repetition of the application challenging the invitation to tender for the first quarter, Simmenthal cannot expect to derive any further advantage in the event of its being successful. The Court therefore has sufficient grounds on which to declare this application inadmissible.

io The issue raised by the applicant concerning the meaning of the expression "price for reducing intervention agency stocks usually charged at the relevant time" is specious, since in the context of the judgment of 6 March 1979 it is absolutely clear that that expression refers to the price which buyers are usually charged in the absence of any particular intended purpose for the meat concerned. The prices mentioned by the applicant refer to wholly exceptional transactions in that they relate to sales of meat for social purposes or of goods which, as they were coming to the end of the period during which their freshness could be guaranteed, were disposed of at a particularly favourable price. Prices charges when exceptional transactions of this kind are concluded cannot be taken as the "usual" prices for reducing stocks.

n It is thus apparent that the prosecution by the applicant of its action has been an abuse of process from the date when the judgment of 6 March 1979 was delivered and, at the latest, as from the date on which the decision adopted by the Commission in implementation of that judgment took effect. The application must therefore be dismissed and the applicant be ordered to pay the whole of the costs including the costs of the application for the adoption of interim measures.

O P I N I O N OF MR REISCHL — CASE 243/78

O n those g r o u n d s ,

T H E C O U R T (Second Chamber)

hereby :

Mr President, Council of 29 June 1968: Official Members of the Court, Journal, English Special Edition 1968 (I), p. 187) and the rules whereof have been laid down in a series of regulations. They My opinion today is concerned with were considered in detail in the problems connected with the special judgment of 6 March 1979 in Case import arrangements for frozen beef 92/78 {Simmenthal S.p.A. v Commission intended for the processing industry as of the European Communities [1979] they have been put into practice since the ECR 777), and I would refer the Court beginning of 1977. I do not now need to to the opinion and judgment in that case. give particulars of these arrangements which are based on the common organ- In the present case, which has also been ization of the market in beef and veal brought by Simmenthal, the immediate (Regulation (EEC) No 805/68 of the matter at issue has been a Commission

I — Translated from the German.