C-350/88

Mr President, Commission fixed a maximum amount of Members of the Court, aid for tender No 8, with the result that the applicants's tenders were not accepted. 2The maximum aid allowable according to the decision was less than the previous tenders and at the same time less than the rates of A — Facts aid stated by the applicants in their tenders. From tender No 4 3in July to the contested tender No 8 in September 1988 there was a continuous decline in the maximum amount 1. The case in which I now deliver my of aid. From ECU 167 per 100 kg of butter Opinion is an application for annulment aid fell to ECU 166, 163, 159 and then to under Article 173 of the EEC Treaty made 154 in September 1988 and even by another by three French companies who manu- ECU 4 to ECU 150 on tender No 9. facture pastry products. They are: (1) Société française des Biscuits Delacre, a public limited company, whose registered office is at Nieppe (France), (2) Etablis- sements J. Le Scao, a public limited liability company, whose registered office is at Briec-de-1'Odet (France), and (3) Biscuiterie 4. As a result of a reduction in butter de l'Abbaye, a private limited liability stocks, the whole price structure of the company, whose registered office is at butter market started to move. The Lonlay-l'Abbaye (France) (hereinafter called minimum prices for the sale of butter from 'the applicants'). public stocks continually rose in the second half of 1988. Likewise, a considerable increase in the market price of butter was to be observed. 2. The applicants took part in a standing invitation to tender for the grant of aid of butter under the provisions of Regulation (EEC) No 570/88 of the Commission, of 16 February 1988, on the sale of butter at reduced prices and the granting of aid for butter and concentrated butter for use in the 5. Because the market price rose and at the manufacture of pastry products, ice-cream same time the aid for the purchase of and other foodstuffs. 1 market butter fell, the cost of purchasing butter increased by some 50%. The applicants who regularly met their needs with market butter were affected by that trend. 3. By a decision of 30 September 1988 addressed to the Member States, the 2 — The result of the Commission Decision of 30 September 1988 (OJ 1988, C 259, p. 9) * Original language German. 3 — Commission Decision of 1 August 1988 (OJ 1988, C 204, 1 — OJ 1988, L 55, p. 31 p. 12).

(iii) order the Commission to pay the costs. 11. In the standing invitation to tender procedure, the intervention agencies function to some extent as an intermediary. 8. The Commission contends that the Court They collect the various tenders made should: during a particular period and forward them to the Commission. Having regard to the tenders from the whole Community the (i) dismiss the application as unfounded; Commission then fixes a minimum price for the sale of intervention butter and a maximum amount of aid for the purchase of market butter. The rates are addressed to (ii) order the applicants to pay the costs. the Member States as a decision and bind the intervention agencies in relation to the particular tender. 9. Reference is made to the Report for the 4 — See judgment of 6 March 1979 in Case 92/78 Simmentbal v Hearing for the detailed facts and the Commission [1979] ECR 777, paragraph 22.

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12. The decision whether a tenderer's offer II — Merits is accepted or whether he is granted aid is in fact taken by the Commission, for the inter- vention agencies have no discretion to (1) Failure to state reasons as required by depart from the price fixed by the Article 190 of the EEC Treaty Commission. The intervention agencies' notice to the tenderers that they have not been awarded the particular tender is a binding decision in which the intervention 15. In the applicants' view, the contested agency has no discretion. decision does not satisfy the requirement to state reasons laid down by Article 190 of the EEC Treaty because, on the one hand, it does not refer to the opinion of the Management Committee and, on the other, gives no reasons for the change in the amount of aid.

14. That result is supported by the fact that 6 — Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk the Commission has raised no objection to and milk products (OJ, English Special Edition 1968 (I), admissibility in the proceedings. p. 176) 7 — Judgment of 25 October 1984 in Case 185/83 Interfacultair Instituut Elcclronenmicroscopie der Rijksuniversiteit 5 — See judgment in Case 92/78, cited above, paragraphs 23 Groningen v Inspecteur der Invoerrechten en Accijnzen to 26. Groningen (1984) ECR 3623, paragraph 38

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19. In actually assessing contested decisions trend, the Commission reaches its decision. the Court has always taken into account the The factors determining a decision are so legal context and scope of the decision. 8In limited that reference to the relevant legal the Court's view, it is thus not necessary for basis and context must generally be all the factually or legally relevant factors to sufficient statement of reasons. be referred to in the statement of reasons. A statement of grounds must be assessed with regard not only to its wording but also to its context and to all the legal rules governing 22.(a) The specific complaint that there is the matter in question. 9 no reference to the opinion of the Management Committee in the decision is unfounded, for in the decision of 30 September 1988, 1 0 a s notified t o the permanent representation for France, it is expressly set out in the statement of reasons: 'considérant que le comité de gestion du lait

Case 125/77 Koninklijke Scholten-Honig und De verenigde the applicants, the contested decision is, Zetmeelbednjven 'De Bijenkorf' BV v Hoofdproduktschap voor Akkerhouwprodukten [1978] ECR 1991, paragraphs 18 to 22. 10 — Decision COM(88) 1778.

29. Nevertheless, that procedural defect 26. Admittedly, the position of the defence does not lead to the unlawfulness of the of the tenderers is unsatisfactory in that decision, for it is clear that the alleged they do not dispose of the full statement of failure to state reasons in the contested reasons immediately after the decisions have decision, in so far as the opinion of the been taken. That result is a disadvantage Management Committee is concerned, does which to some extent has to be accepted, not exist. for it arises only from the fact that the tenderers are challenging a decision which has not been addressed to them. A limit must, however, be placed on that factual disadvantage once the tenderers' rights of 30.(b) In so far as the complaint of insuf­ defence are adversely affected. ficient statement of reasons is based on the fact that no explanations were given for the reduction in the maximum amount of aid, the applicant's submission cannot succeed. Adjustment of minimum prices and 27. The possibility of action under the maximum rates is inherent in the system. 12 second paragraph of Article 173 of the EEC The standing invitation to tender, which Treaty requires that access to a decision leads to roughly fortnightly individual invi­ which is addressed to a third party but 12 — Sec lhe judgments of 5 May 1981 in Case 112/80 Firma which directly and individually affects the Anion Durheckv Hauptzollamt Frankfurt am Mam/Fluįhafen person concerned must be possible, for [1981] ECR 1095, paragraphs 47 to 50, of 12 Anril 1984 in Case 281/82 Unifrex SARL v Commission ana Council oj otherwise effective legal protection will be the European Communities [19841 ECR 1969, paragraphs 25 and 26, of 7 May 1987 in Case 258/84 Nippon Seiko frustrated. Tenderers must therefore, if KK v Council of the European Communities [1987] ECR necessary upon inquiry, be placed in a 1923, paragraphs 31 and 32, and of 7 May 1987 in Case 260/84 Mmebea Company Limited v Council of the European Comminuta [1987] ECR 1975, paragraphs 26 11 — o j 1982, L 360. p 43 to 28

31. The applicants are of the opinion that there was a special obligation to state reasons because the prices fixed by the 36. The considerable increase in acquisition decision of 30 September 1988 represented a costs is due only partially to the adjustment departure from the previous long-standing of aid. The increase in the market price was practice. at least just as significant. The Commission has, however, no direct influence on that development so that it cannot be held responsible for it. 32. That would be true only if tenderers could have a legitimate expectation in the retention of a rate of aid reached at any given moment. 13 37. Nor is the Commission under any duty to ensure that the costs of supplies remain the same. In so far as the considerable increase in the costs of supplies appears disproportionate, it is due to the accumu- 33. As already pointed out, it is intended lation of various factors of which the that the levels fixed should vary. Otherwise, reduction in the rate of aid is only one. a single decision could be adopted which There could be no expectation deserving would be necessary for a longer period and protection that purchase costs would remain the manufacturers in such a case could rely the same and the Commission should be on the rate of aid remaining the same. responsible for ensuring that they did so. The advantages which the applicants had derived over a long period from the system of measures to encourage sales are not accompanied by any protection in law in the 34. The system of minimum prices and aid form of vested rights. provided for by Regulation No 570/88 is, however, by definition transitory and is primarily intended to reduce the large butter stocks in the Community. In that context the system of aid for market butter is 38. Finally, no expectation could be based intended to counteract an increase in stocks. on Regulation (EEC) No 3206/88. 1 4That The reduction in costs of supply for 14 — Council Regulation (EEC) No 3206/88 of 17 October 1988 amending Regulation (EEC) No 1307/85 (OJ 1988, 13 — See Cases 112/80, 281/82, 258/84 and 260/84. L 286, p. 1).

42. From the beginning of 1988, prices for butter and milk fat continued to increase. 'whereas the butter market in the Community is encumbered by heavy stocks bought in . . . ; whereas all the butter corre- sponding to these stocks cannot be disposed of in the normal way; whereas Council Regulation (EEC) No 1723/81 . . . lays down general rules on measures intended to 43. In view of those circumstances, the maintain the level of the use of market Commission had to be allowed to adjust its butter by certain classes of consumer and aid policy to the changing situation. In undertakings; whereas, in both cases, the judging the proportionality of its measures it sale of butter from stock at reduced prices should not be overlooked that the applicants or the introduction of aids reducing market suffered no disadvantage but were simply butter prices to a level comparable with that granted a lesser advantage. 15 charged for butter from stock, in favour of certain Community processing firms with a 15 — See the judgment of 27 September 1979 in Case 230/78 Eridama-Zuccherifia Nazionali and SpA Società italiana per view to the manufacture of pastry products, lndustria degli zuccheri v Minuter for Agriculture and ice-cream or other foodstuffs, should help Forestry, Minuter for industry. Commerce and Crafts and SpA Zuccherifia Meridionali [1979] ECR 2749, to promote the disposal and use of butter'. paragraph 22.

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47. Secondly, they consider they did not 51. The applicants have not disputed the receive equal treatment since as under- Commission's observation that on the takings established in France they received occasion of the invitations to tender information only about French stocks. complete lists of stocks were drawn up. The obligation to provide information arises 16 — Invitation to tender No 4 (decision of 1 August 1988) to under Articles 13 and 15 of Regulation No invitation to tender No 9 (decision of 17 October 1988). 570/88.

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52. The fact that the stocks in the indi- products are subject in the same way to the vidual Member States vary may be regarded general provisions on the invitations to as discrimination. That is a factual circum- tender. There is thus no discrimination. stance and not unequal treatment. Nor does the fact that more costs may be involved in III — Costs obtaining supplies from another Member State amount to discrimination. In that 53. Under Article 69(2) of the Rules of respect, too, the circumstances are the same Procedure, the unsuccessful party must bear for all traders. All manufacturers of pastry the costs.

C — Proposal

54. In conclusion, I propose that the Court decide as follows: