C-79/87

Mr President, 'Where it is decided to determine the supply Members of the Court, costs by a direct award procedure the inter­ vention agency designated for the purpose shall, after ensuring competition between 1. The Tribunal de commerce, Brussels, has several tenderers, conclude the contract on referred to the Court two questions which the basis of the most favourable terms'. have arisen in proceedings between l'Office belge de l'économie et de l'agriculture (Belgian Office for the Economy and Agri­ 5. Before I examine the questions asked I culture, hereinafter referred to as the feel obliged to make some remarks 'OBEA') and Établissements Soules & Cie concerning certain problems raised during SA (hereinafter referred to as 'Soules') the course of the oral procedure by Counsel concerning the failure to perform a contract for Soules in order to explain why those awarded by the tendering procedure for the problems are in my view outside the scope supply of 550 tonnes of wheat flour as food of these proceedings for a preliminary aid for Sudan. Soules is challenging the ruling. conditions whereby the OBEA subsequently concluded a contract by the direct award procedure with another undertaking to remedy the default by Soules. 6. (a) Counsel for Soules disputed first of all that the Commission and the OBEA were in a situation of urgency and stated 2. The second contract was concluded that the circumstances certainly did not pursuant to Commission Regulation (EEC) justify recourse to such hurried procedures No 1058/82 of 4 May 1982 opening a new as those which the Commission and the invitation to tender for the mobilization of OBEA used. common wheat flour for the International Committee of the Red Cross as food aid (Official Journal 1982, L 123, p. 18). 7. In this respect it will suffice to note that the questions asked by the Tribunal de commerce do not concern the point whether 3. Under Article 1 of that regulation the the choice of the direct award procedure operation was to be implemented in was justified in the circumstances of the accordance with the provisions of present case. Commission Regulation (EEC) No 1974/80 of 22 July 1980 laying down general implementing rules in respect of certain food-aid operations involving cereals and 8. In any event the fact that it was possible rice (Official Journal 1980, L 192, p. 11). for 550 tonnes of flour to be mobilized pursuant to a decision of the Council of 1980 placing a certain quantity of cereals at 4. As regards the direct award procedure, the disposition of the International Red the first paragraph of Article 9 of the latter Cross cannot be invoked to dispute the regulation provides as follows: urgency of this aid operation for the Sudan.

In fact, the Council makes such different Member States, the latter shall commitments as precautionary measures. It communicate to each other with the is then up to beneficiaries to activate this minimum delay all the information promise of aid as and when the need arises. necessary for carrying out their respective In this case the decision approving food aid tasks and for the successful conclusion of for the Sudan was taken in December 1981 the operation'. at the request of the Red Cross and the shipping period was fixed for the month of February 1982. There can be no doubt that Article 22 (4) provides that: matters had become particularly urgent when the operation had still not been 'The intervention agency of the country of carried out by the beginning of May. shipment ... shall take the necessary measures to check that the goods taken over by the recipient leave the geographical 9. (b) As for the difference between, on the territory of the Community from the port one hand, the title and the second recital of indicated'. the preamble to Regulation No 1058/82 which referred to a new invitation to tender, and, on the other, the annex to that regu­ The Commission and the OBEA were lation which provides that the procedure to therefore dependent on the information be applied in order to determine supply furnished by the OBEA and by the costs is to be mutual agreement, it must successful tenderer itself. It is apparent from again be said that the Belgian court has not an undated telex message sent by the Italian asked the Court any questions on that intervention agency to the Commission and subject. Furthermore, that is quite under­ to the OBEA that the deadline for supplying standable since the preamble clearly explains the goods in question had been extended why the new regulation had to be adopted until 22 March 1982. However there is no (failure to perform the contract tendered evidence before the Court to show that the for) and the background to the operation. Commission was informed of the failure to The annex, which is the operational part of perform the contract awarded under the the regulation, leaves no doubt that it was tendering procedure a long time before it intended to set in motion a direct award adopted the new regulation. procedure.

would be liable to pay a difference in price 18. Secondly, it must be stated that the of BFR 1 548 per tonne'. They did therefore condition laid down in Article 9 of Regu­ acknowledge that there had been a rise in lation No 1974/80, which provides for prices between January and May. 'ensuring competition between several tenderers' has been complied with since, in general usage 'several' means 'more than 14. In any event, in the context of the one'. As the Commission correctly pointed Article 177 procedure there can be no out, the Treaty itself utilizes the expression question of the Court determining the in that sense in Article 86 and the Court in questions of fact which are relevant in the Case 4/54 also spoke of 'one or more main proceedings and which, quite rightly, undertakings' (in the French text 'une ou are not the subject of the questions plusieurs entreprises') (Judgment of 11 formulated by the national court. Conse­ February 1955 ISA v High Authority [1954 quently, I take the view that it is not for me to 1956] ECR 91, at p. 98). to examine or draw conclusions from the price-lists which were communicated to the Court after the hearing.

19. Furthermore, I take the view that in this case the particular circumstances justified 15. However, I wish to turn now to an the way in which the OBEA proceeded. examination of the national court's First of all, there is the fact that within the questions which are set out in the Report earlier tendering procedure, the OBEA had for the Hearing. As those questions refer to already ensured competition between all the the precise circumstances of the present case Community undertakings which might be it is necessary to extract from them the interested in supplying 550 tonnes of wheat questions concerning the interpretation of flour. Community law which they entail.

II — The second question the submission of tenders (Article 3 of Regulation No 1974/80), there is no condition laid down regarding the time at 23. In its second question the Belgian court which the competent national agency may asks whether a tender accepted by the inter­ conclude the contract; to take an extreme vention agency after the regulation opening example, it may therefore conclude the the procedure has entered into force must contract on the very day when the regu­ be considered to be valid even though it was lation enters into force. In this case it did so sought and made before the regulation on the third day after the regulation came entered into force and even before it was into force. published in the Official Journal.

24. Like the Commission I would first point out that, from the legal point of view, 28. Furthermore, the regulation does not Article 9 of Regulation No 1974/80 clearly stipulate at what stage there must be compe­ distinguishes between two phases, that is to tition between the tenderers. Consequently say: it may be assumed that time for assessing whether the conditions required by Article 9 have been complied with is the time when (a) competition between tenderers; the contract is concluded by the tender being accepted. (b) the conclusion of the contract.

25. Each of these two phases is subject to a condition. The competition must be between 29. In the present case it would certainly several tenderers and the conclusion of the have been preferable to await the entry into contract must be on the basis of the most force of the regulation before calling for favourable terms. tenders but, in circumstances such as these, I consider that the way in which the agency proceeded cannot be considered to affect 26. Otherwise Article 9 leaves a great deal the validity of the contract. of discretion to the intervention agency.

'In circumstances such as those in the main proceedings , an intervention agency responsible for implementing a direct award procedure is entitled to initiate the competition between the tenderers before the entry into force of the regulation setting in motion the procedure for a particular contract provided that the contract is concluded after the regulation has entered into force.'