C-76/79

JUDGMENT OF 5. 3. 1980 — CASE 76/79

In Case 76/79

KARL KÖNECKE FLEISCHWARENFABRIK G M B H & Co. KG, a meat-processing undertaking having its registered office in Bremen, Federal Republic of Germany, represented by Klaus Landry, Rechtsanwalt, Hamburg, with an address for service in Luxembourg at the office of Jeanne Jansen-Housse, Huissier de Justice, 23 Rue Aldringen, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Gianluigi Campogrande, acting as Agent, assisted by Jörn Sack, a member of the Legal Department, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for the annulment of Commission Decision N o 79/187 of 30 January 1979 fixing the minimum selling prices for frozen beef put up for sale by the intervention agencies in accordance with Regulation N o 2900/77 and specifying the quantities of frozen beef for processing which may be imported under special terms in the first quarter of 1979 (Official Journal 1979, N o L 41, p. 49)

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

The facts, the course of the procedure, Since the situation on the beef and veal the conclusions and submissions and market had been characterized for arguments of the parties may be several years by a shortage accompanied summarized as follows: by a rise in prices and thereafter degenerated into a market-price slump, made worse by massive imports and since import arrangements had to be adjusted to avoid a recurrence of similar I — S u m m a r y of t h e facts situations the Council considered it necessary to adapt certain special systems so that account might be taken in annual Regulation No 805/68 of the Council of estimates of both the supplies available to 27 June 1968 on the common organiz- the Community and of the Community's ation of the market in beef and veal needs. It accordingly modified inter alia (Official Journal, English Special Edition Article 14 of Regulation No 805/68 by 1968 (I), p. 187) provides in Article 13 providing that henceforth frozen meat (1) that a levy shall be charged on intended for processing imported under imports into the Community of frozen total suspension of the levy would only meat of domestic bovine animals listed qualify for the exemption from the levy under tariff subheading No 02.01 A II on new conditions: (a) 2 of the Common Customs Tariff.

(c) Importation under total suspension Furthermore applications for licences of the levy shall be conditional on may be considered only if they are production of an import licence submitted by a natural or legal person issued for a quantity falling within who for at least 12 months has been the limits laid down each quarter; it carrying on business in the meat and may be made conditional, as far as livestock sector and is officially necessary, on production of a registered in a Member State (Article 1 purchase contract for frozen meat of Regulation No 2901/77). held by an intervention agency ("linking" or "twinning" arrange- ments; Article 14 (3) as amended). On 22 December 1977 the Commission also adopted Regulation No 2900/77 laying down detailed rules for the sale of The implementing provisions provided beef held by the intervention agencies to for in Council Regulation No 425/77 enable the import with total suspension were adopted by the Commission in of the levy of frozen beef and veal Regulation N o 585/77 of 18 March intended for processing (Official Journal 1977 on the system of the import and 1977, No L 338, p. 6). export licences for beef and veal (Official Journal 1977, No L 75, p. 5) and in Regulation No 597/77 of 18 March Under Article 1 (1) of that regulation, 1977 laying down detailed rules for importation with total suspension of the the application of special import levy is conditional upon the submission arrangements for certain types of frozen of a purchase contract for frozen meat beef intended for processing (Official held by an intervention agency, Journal 1977, No L 76, p. 1); those regu- concluded in accordance with the regu- lations were amended and supplemented lation. Article 1 (2) provides that sale by Commission Regulations Nos shall take place by way of tender 1384/77 of 27 June 1977 (Official pursuant to Articles 6 to 14 of Regu- Journal 1977, No L 157, p. 16) and No lation No 216/69 of the Commission of 2901/77 of 22 December 1977 (Official 4 February 1969 on detailed rules of Journal 1977, No L 338, p. 9). (Those application for the disposal of frozen were subsequently replaced by Com- beef and veal bought in by intervention mission Regulations Nos 571/78 and agencies (Official Journal, English 572/78 of 21 March 1978 (Official Special Edition, 1969 (I) p. 31); that Journal 1978, No L 78, pp. 10 and 17)). regulation provides inter alia that in a tendering procedure the Commission Under those provisions in order to shall fix minimum selling prices, that if qualify for total suspension of the levy the tender is less than the minimum price the application for a licence or licences it shall be refused and that the contract lodged by any one applicant must relate shall be awarded to the highest tender to a quantity corresponding to not less whilst when several tenders at the same than five tonnes of bone-in meat and not price are received for the same quantity, more than 10% of the quantity fixed by the intervention agency shall divide the the Commission pursuant to Article 14, quantity available in agreement with the as amended, of Regulation No 805/68 tenderers concerned or award it by for the quarter during which the balloting. Article 1 (2) of Regulation No

By a communication of 29 January 1979 On the basis of its Regulations Nos which was received on 5 February 216/69, 2900/77 and 2901/77 the BALM notified Könecke that, according Commission published on 13 January to the decision of the Management 1978 (Official Journal 1978, No C 11, Committee for Beef and Veal, its tender p. 16) a "General notice of periodic could not be accepted under the invitations to tender for the sale of tendering system. frozen beef held by the intervention agencies to enable the import with total suspension of the levy of frozen beef and On 30 January 1979 the Commission veal intended for processing". adopted Decision No 79/187 fixing the minimum selling prices for frozen beef put up for sale by the intervention On 23 December 1978 the Commission agencies in accordance with Regulation published Notice of invitation to tender No 2900/77 and specifying the quantities No D P 5 — Regulation (EEC) No of frozen beef for processing which may 2900/77 — for the sale of certain frozen be imponed under special terms in the bone-in beef held in stock by the first quarter of 1979 (Official Journal German intervention agency (Official 1979, No L 41, p. 49). Journal 1978, No C 308, p. 29).

Article 1 (1) of that decision together According to that notice of partial with the annex thereto fixes as follows invitation to tender the German the minimum selling prices for the frozen intervention agency was to sell approxi- beef stored by the German intervention mately 5 700 tonnes of frozen bone-in agency which are to be adopted for the beef in accordance with the rules laid invitation to tender N o D P 5:

(b) in the alternative declare that it is Article 2 of the decision fixes, for the not well founded at least in so far as period 1 January to 31 March 1979, the the applicant company's tenders for maximum quantities of meat intended for the meat of the German intervention the manufacture of 'preserved food' agency stored in Denmark are under total suspension of the levy at concerned; 7 732 tonnes. (c) order the applicant to pay the costs. II — W r i t t e n p r o c e d u r e IV — S u b m i s s i o n s a n d a r g u m e n t s On 7 May 1979 Könecke instituted of t h e p a r t i e s in t h e c o u r s e proceedings pursuant to the second of t h e w r i t t e n p r o c e d u r e paragraph of Article 173 of the EEC Treaty for the annulment of Commission Decision No 79/187 of 30 January 1979. A — Admissibility The written procedure followed the normal course. The Commission considers that the application is inadmissible on the one The Court, having heard the report of hand because it is out of time and on the the Judge-Rapporteur and the views of other because the applicant has no legal the Advocate General, decided to open interest in taking proceedings. the oral procedure without any preparatory inquiry. It nevertheless requested the Commission and Könecke (a) Decision No 79/187 was notified each to reply in writing to a question; its (by the communication from BALM of request was complied with within the 29 January 1979 to Könecke) and was prescribed time-limit. published (in the Official Journal of

KÖNECKE v COMMISSION

not obligatory. Member States. There are no compelling reasons for fixing the beginning of the period laid The fact that the communication from down in the third paragraph of Article BALM is dated 29 January 1979 and 173 of the Treaty at the later date where gives the wrong authority as the source individual notification is followed by of the decision is irrelevant: since subsequent publication in the Official the applicant undertaking was fully Journal. The requirement of protection conversant with the tendering procedure of the person concerned by the decision in question it could not have entertained is sufficiently met if he is allowed a the slightest doubt as to the nature and period of two months after individual meaning of the decision at issue. notification of the measure.

JUDGMENT OF 5. 3. 1980 — CASE 76/79

applicant company, that is 6 February under exemption from the levy; likewise 1979, and that since the application was the case-law of the Court indicates that only lodged on 7 May it is out of time there would be no possibility of success and accordingly inadmissible. for an action for damages based on the improper nature of the contested decision arising from the invalidity of the (b) The application is also inadmissible legal provisions by the Commission on because the applicant has no legal which the decision was based. interest in the annulment of Decision No 79/187. The action for making good the consequences of a mesure (Folgenbesei- tigungsanspruch) known to German law In its judgment of 6 March 1979 in Case and relied upon by the applicant is not 92/78 the Court upheld the Simmenthal available with regard to administrative company's legal interest on two grounds measures whereby the administration even though the contested decision had grants the citizen certain advantages of already been fully implemented for the an economic or social nature; it is linked benefit of the other tenderers parti- to the requirement that the adminis- cipating in the invitation to tender and as trative measure, the implementation of such had become devoid of purpose: the which is sought, is lawful and possible in Court considered that Simmenthal practice; the removal of the conse- retained an interest in the annulment of quences of a measure may not adversely the decision, such interest consisting affect the rights and interests of third either in its being suitably restored to its parties. original position following the rejection of its tender or in inducing the Com- mission to make suitable amendments in An action of that nature is thus in any the future as required by law to the event not appropriate in this case. system of invitations to tender.

The decision is dated 30 January 1979; proceedings begins to run in accordance the letter from BALM notifying the with Article 81 (1) of the Rules of applicant that his tender could not be Procedure from the date on which it is accepted is dated 29 January; that letter actually published (whether or not such accordingly cannot constitute notifi- publication is obligatory). cation to the applicant of a decision which the Commission had not yet taken. In such a case the principle of most favoured treatment must be applied to the applicant; in so far as the Furthermore the letter from BALM of 29 Community institutions are at fault in January 1979 does not mention a creating doubt as to the date at which decision of the Commission but of the time begins to run the applicant must be "Management Committee for Beef and given the benefit of that doubt. Veal"; accordingly it cannot constitute an individual notification of the contested decision. (b) The judgment of 6 March 1979 in Case 92/78 has established beyond doubt Finally the contested decision does not that the contested decision is unlawful. contain any statement of the reasons on That finding is sufficient to establish that which it is based. the applicant has a legal interest in taking proceedings. The applicant cannot be expected to accept a situation in The period fixed for instituting which an unlawful decision, which is of proceedings against a decision cannot direct and individual concern to it, begin to run until the text of that continues in force. decision or at any rate the essential details of its contents have been notified to the applicant. An individual The situation of the applicant, with notification for the purpose of the third regard to its participation in the paragraph of Article 173 of the Treaty invitation to tender for the first quarter means communication of the entire text of 1979, is the same as that in Case of a contested decision. Only then can 92/78 of the Simmenthal company which the applicant establish whether the the Court found had such a legal reasons on which it is based have been interest. In so far as it is necessary to properly stated and whether it refers to induce the Commission appropriately to the necessary proposals and opinions. redress the consequences of its unlawful The letter from BALM of 29 January decision the applicant can undoubtedly 1979, obviously does not even come near establish such a legal interest. to meeting those conditions; furthermore it did not come from the Commission either. The "redress of the situation" of the applicant for the purposes of the judgment of the Court of 6 March 1979 In the absence of individual notification is termed in German administrative law of the contested decision to the applicant "Folgenbeseitigungsanspruch" (action to only the date of publication is relevant. redress the adverse consequences of an The time-limit was thus observed. unlawful administrative measure). The action is to obtain restitution in kind or where that is impossible to provide In any event although the contested reparation by other means. It is not decision was individually notified to the intended to make good the loss in its applicant the period fixed for instituting entirety; only losses which have been

The Commission considers that in any B — Substance case the application is not well founded with regard to the tenders for meat stored in Denmark, that is, to the most The applicant considers that Decision No important part of the application. 79/187 suffers from the same defects as Commission Decision No 78/258 of 15 February 1978 which the Court annulled (a) Although the applicant's five in its judgment of 6 March 1979 in Case tenders were duly lodged with the 92/78. It declares that it adopts the German intervention agency an error reasoning on which that judgment is occurred whereby they were not based and the arguments submitted by transmitted to the Commission as tenders Simmenthal in the course of Case 92/78. concerning the meat stored by the agency in Denmark. In accordance with Article 3 of Commission Regulation No 1805/77 of 4 August 1977 laying down, (a) The Commission recognizes that in respect of the beef and veal sector, the application is well founded with special rules for the application of Regu- regard to the applicant's tender for the lation No 1055/77 on the storage and meat stored in Germany. movement of products bought in by an intervention agency (Official Journal 1977, No L 198, p. 19) and with 8 of the Its objection based on the fact that that General notice of periodic invitations to tender was among the six lowest tenders tender of 13 January 1978 the minimum in the category in question must be purchase price is fixed separately for considered in the light of the Court's each Member State; consequently the finding in its judgment of 6 March 1979 applicant's tenders for the meat stored in that the minimum price fixed in the Denmark are not covered by the tendering procedures was clearly higher contested decision in so far as it concerns than the usual price on release from that meat. The decision accordingly

cannot adversely affect the applicant its own tenders were higher than the since it does not relate in any way to its price on release from storage, they tenders. should have been taken into consideration. In view of the division of powers between the Community institutions and The applicant's tender for the meat the authorities of the Member States the stored in Germany indeed only came error on the part of the German 71st but, according to the principles intervention agency in the transmission evolved by the Court in Case 92/78, the of the applicant's tenders cannot lead to 69 higher tenders should not have been the annulment of the contested decision. taken into consideration since they were not submitted by undertakings in the processing industry. The applicant's offer thus came second; since it was (b) With regard to the applicant's considerably in excess of the price on tender for the intervention meat stored release from storage it should have been in Germany the application, if it were accepted. considered admissible, would have to be considered well founded on the basis of the grounds for the judgment of the The Commission states that in the course Court of 6 March 1979 in Case 92/78. of the first quarter of 1979 sales at prices Nevertheless that decision cannot have fixed in advance for beef and veal taken wider legal consequences for the over by the German intervention agency applicant: its tender was amongst six of were governed by the prices laid down in the lowest tenders in the category in Annex I to Commission Regulation N o question and 35 offers which, since they 83/79 of 17 January 1979 deferring the failed to reach the minimum price fixed, date of acceptance of beef and veal were likewise not taken into con- offered for sale by intervention agencies sideration although they were higher under Regulations No 2073/74 and N o than those of the applicant. Accordingly 1027/78 and altering certain selling the applicant's tender could not have prices (Official Journal 1979, No L 13, been accepted in any case. p. 10) for bulls A, 132 503 units of The judgment of 6 March 1979 provides account and for steers A, 130 556 units no grounds for the view that the of account per 100 kg. Commission was obliged to take into consideration any tender higher than the prices prevailing for sales at prices fixed in advance. VI — Oral p r o c e d u r e

3 The information provided in the course of the procedure shows that in fact only the first of the said tenders was duly transmitted to the Commission; on the other hand the four tenders concerning the meat stored in Denmark were placed by the German intervention agency amongst the tenders for the meat stored in Germany so that they could not be taken into consideration by the Commission in fixing the minimum price applicable to the sale of the meat stored in Denmark. With regard to the tender duly taken into consideration by the Commission, this was rejected because the price offered by the applicant was lower than the minimum price adopted for the corresponding quantity of meat. The list which forms the basis of the decision in dispute shows that the quantity of meat for which the applicant submitted its tender brought in 76 tenders in all of which the 35 highest were accepted, the minimum price being 1 831 units of account per tonne; the tender of the applicant came 71st with a tender price of 1 687 units of account per tonne.

KÖNECKE v COMMISSION

4 The applicant considers that the decision at issue is vitiated by the same defects as to the law as the decision annulled by the Court in its judgment of 6 March 1979 in Case 92/78, on the claim by S.p.A., Simmenthal [1979] ECR 777 and accordingly claims that it should be annulled. In order to avoid repetition the applicant refers to the arguments submitted by Simmenthal in Case 92/78 and to the grounds on which that judgment is based.

5 The Commision puts forward against this claim a series of submissions relating both to the admissibility and the substance of the application-.

7 The objection advanced by the Commission that the application is out of time must be dismissed. In fact the application is against Decision N o 79/187 of the Commission which is dated 30 January 1979. The communication which the German intervention agency addressed to the applicant on the basis of information obtained from the Management Committee for Beef and Veal one day before the decision was adopted cannot be considered as a notification of the decision itself. That communication does not in fact contain any details, apart from the rejection of the tender, which would have permitted the applicant to identify the decision taken and to ascertain its precise content in such a way as to enable it to exercise its right to institute proceedings. Since the contested decision was published in the Official Journal of 16 February 1979 the provisions of Article 81 of the Rules of Procedure indicate that the application was lodged within the time-limit.

JUDGMENT OF 5. 3. 1980 — CASE 76/79

s Secondly the Commission claims that the applicant does not have a legal interest in taking proceedings since its application cannot be of any practical avail. In fact since the tendering procedure is definitively concluded it is impossible for the Commission to meet the applicant's claims even if it is successful in its action.

9 In raising that objection the Commision is in breach of its obligation under Article 176 of the Treaty when one of its acts has been declared void. According to that provision the institution whose act has been declared void "shall be required to take the necessary measures to comply with the judgment of the Court of Justice". Even if in the circumstances it proves impossible to fulfil that obligation the application for annulment still constitutes an interest as the basis for possible proceedings for damages.

i3 It is consequently for the Commission, pursuant to the first paragraph of Article 176 of the Treaty, to review the individual situation of the applicant and, through the competent intervention agency, to take a fresh decision in its case.

M As the Commission has stated it is particularly difficult to rectify the position of the applicant in this case since, unlike the situation in which the Court delivered its judgment of 6 March 1979 in Case 92/78, the applicant's tenders were higher than the price on release from storage normally prevailing at the time in question. In its judgment of 6 March 1979 the Court of Justice emphasized that the system introduced by the new Article 14 of Regulation No 805/68 may in no circumstances have the effect of ensuring that the processing industry buys intervention meat at a price lower than the price for reducing intervention agency stocks usually charged at the relevant time; this does not mean that a tender equal to or higher than the usual price for reducing intervention agency stocks automatically ensures that the tenderer is covered by the special arrangements set up by the said provision.

is The Commission must accordingly appraise first whether, within the framework of tendering arrangements which should have been in accordance with the legal requirements set out in the judgment of 6 March 1979, the applicant's tenders could come within range. If the Commission considers that such was the case, then by virtue of Article 176 of the Treaty it will need, as respects the applicant, having due regard to the basic principles at present applicable to the management of the market in beef and veal, to take such decision as will provide due compensation for the damage which the applicant has suffered as a result of the decision which has been annulled.

hereby rules:

1. Commission Decision N o 79/187 of 30 January 1979 fixing the minimum selling prices for frozen beef put up for sale by the intervention agencies in accordance with Regulation No 2900/77 and specifying the quantities of frozen beef for processing which may be imported under special terms in the first quarter of 1979 is annulled in so far as it concerns the applicant.

2. The Commission is ordered to pay the costs.

Touffait Pescatore Due

Delivered in open court in Luxembourg on 5 March 1980.

A. Van Houtte A. Touffait Registrar President of the Second Chamber