T-180/95
ECLI:EU:T:1997:121
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NUTRIA v COMMISSION
O R D E R O F T H E C O U R T O F FIRST INSTANCE (Third Chamber) 18 July 1997 *
In Case T- 180/95,
Nutria AE, a company incorporated under Greek law, established in Athens, rep- resented by Konstantinos Adamantopoulos, of the Athens Bar, with an address for service in Luxembourg at the Chambers of Arsène Kronshagen, 12 Boulevard de la Foire,
applicant,
v
Commission of the European Communities, represented by Dimitrios Goulous- sis, Legal Adviser, and Blanca Vila Costa, a national official on secondment to the Commission, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
A P P L I C A T I O N under Article 178 of the EC Treaty for compensation for the damage alleged to have been suffered by the applicant as a result of the delay in collection by the carrier designated by the Commission of the olive oil made avail- able by the applicant under a tendering procedure for the free supply thereof to the people of Georgia and Armenia,
* Language of the case: Greek.
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ORDER OF 18. 7.1997 — CASE T-180/95
T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Third Chamber),
composed of: B. Vesterdorf, President, C. P. Briët and A. Potocki, Judges,
Registrar: H. Jung,
makes the following
Order
Legal background
1 The Council adopted Regulation (EC) N o 1999/94 of 27 July 1994 on actions for the free supply of agricultural products to the people of Georgia, Armenia, Azer- baijan, Kyrgyzstan and Tajikistan (OJ 1994 L 201, p. 1) in order to improve the food supply situation for those people.
2 Under Article 2(3) of that regulation, supply and, where applicable, processing costs are normally to be determined by invitation to tender. Article 4 makes the Commission responsible for the execution of those measures and for monitoring the supply operations, and empowers it to adopt the detailed rules necessary for applying the regulation.
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3 Commission Regulation (EC) N o 2065/94 of 16 August 1994 laying down detailed rules for the free supply of agricultural products held in intervention stocks to Georgia, Armenia, Azerbaijan, Kyrgyzstan and Tajikistan pursuant to Regulation N o 1999/94 (OJ 1994 L 213, p. 3) laid down the common rules for participation in tenders for the execution of the supplies and the obligations to be met by success- ful tenderers.
4 In particular, Article 2(3) of Regulation N o 2065/94 provides that invitations to tender may relate to the quantity of products to be removed from intervention stocks as payment for the supply and for any costs of processing, packaging and marking of a lot or group of lots. Article 5(2) specifies that in such a case tenders are to cover the quantities of products to be removed from intervention stocks as payment.
5 Article 6(1) of Regulation N o 2065/94 provides, inter alia, that tenders are valid only where they quote the precise reference to the regulation announcing the indi- vidual invitation to tender and indicate, where Article 2(3) applies, the proposed quantity of product, expressed in tonnes (net weight), to be exchanged for a tonne (net) of finished product. Under Article 6(2), tenders not submitted in accordance with that article or stating terms other than those laid down in the regulation are to be rejected. Finally, under Article 6(3) tenders submitted may be neither changed nor withdrawn after expiry of the time-limit laid down for their submis- sion.
6 Article 7(2) of Regulation N o 2065/94 provides that, on the basis of the tenders submitted, the Commission may decide, with regard to each lot, either not to make any award or to award the supply contract on the basis of the price or quan- tities offered and other elements of the tender which provide the best assurances that the delivery will take place in good technical and hygienic conditions within the time-limits laid down. Article 7(3) specifies that the Commission is to notify successful tenderers of the supply contract awarded to them.
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7 Article 10(4) of Regulation N o 2065/94 provides that, if takeover at the delivery stage is delayed owing to circumstances beyond the control of the successful ten- derer, the additional costs may be reimbursed by the Commission on the basis of supporting documents.
8 Article 12(2) of Regulation N o 2065/94 provides that, before taking over the prod- uct, the successful tenderer is to lodge a security with the intervention agency or the Commission of an amount per tonne (net weight) fixed in the notice of invita- tion to tender, in respect of the quantities to be taken over for each lot, and Article 12(6) makes release of that security dependent upon the successful tenderer's pro- viding proof of compliance with his obligations.
9 Article 1 of Commission Regulation (EC) N o 2494/94 of 14 October 1994 on the supply of olive oil intended for the people of Georgia and Armenia pursuant to Regulation N o 1999/94 (OJ 1994 L 265, p. 30) initiated a tendering procedure for the supply costs of 3 000 tonnes (net) of olive oil, in six lots of 500 tonnes each, in accordance with the provisions of Regulation N o 2065/94, to be made available, under Article 2(1), for loading on board ship at the port of Athens (Piraeus) as from 28 November 1994.
10 Article 3(2) of Regulation N o 2494/94 specifies that tenderers' offers are to include the quantity of olive oil (virgin and lamp oil) to be taken over from the interven- tion stocks referred to in Annex II as the payment necessary to cover all costs of the supply as specified in Article 2 to the delivery stage laid down. Offers are to be expressed in tonnes of olive oil (net weight) to be exchanged for a tonne of fin- ished product (net weight).
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1 1 Article 3(4) of Regulation N o 2494/94 fixes the security referred to in Article 12(2) of Regulation N o 2065/94 at E C U 2 300 per tonne of olive oil (finished product), and Article 3(5) specifies that those securities are to be lodged in national currency in favour of the Commission.
12 Finally, by Regulation (EC) N o 2693/94 of 4 November 1994 (OJ 1994 L 286, p. 16), the Commission invited tenders for transport for the free supply of the 3 000 tonnes of olive oil to Georgia and Armenia. According to Article l(3)(b), the 3 000 tonnes of olive oil (delivery stage FOB, stowed on the boat) were to be made available in the port of Athens (Piraeus) as from 28 November 1994.
Facts
13 By letter of 24 October 1994, Nutria AE, a Greek company which grades and mar- kets agricultural products, submitted its tender for olive oil in the procedure initi- ated by Regulation N o 2494/94.
14 O n 31 October 1994, the Commission decided to award Nutria a contract for the supply of 1 500 tonnes of olive oil, namely lots Nos 1, 2 and 5, of 500 tonnes each. The three remaining lots were awarded to the Italian company Oleifici Italiani SpA.
15 Pursuant to Article 3(4) of Regulation N o 2494/94, Nutria lodged the security referred to in Article 12(2) of Regulation N o 2065/94 — a total of DR 1 206 000 000 on the basis of E C U 2 300 per tonne of olive oil (finished product) — in favour of the Commission.
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16 Nutria removed the 1 500 tonnes of olive oil from various intervention stocks between 11 and 30 November 1994. It processed, packaged and stored the oil on private storage premises.
17 O n 23 November 1994, the Commission awarded the contract for the transport of the supplies to the firm Calberson under the tendering procedure initiated by Regulation N o 2693/94, and informed Nutria thereof by letter of 30 November 1994.
18 By letter of 29 November 1994, the Commission informed Nutria that '... failing any last-minute changes, the ship which is to carry the goods will be in the port of Piraeus on 5 December 1994'. It further requested Nutria to take every step to ensure that that date was respected, so that the operation could proceed smoothly.
19 By fax dated 2 December 1994, Nutria informed the Commission that it held the product on its premises for loading as of that date and that it awaited the Com- mission's instructions in order to take the other measures necessary for transport to the port of Piraeus.
20 Delivery of the olive oil was subsequently delayed several times, for reasons relat- ing to, inter alia, the unavailability of a ship, poor weather conditions and prob- lems with the facilities in the countries of destination. Finally, it was collected by the carrier in two consignments of 750 tonnes each, on 5 and 27 January 1995, and the security lodged by Nutria was released in full in February 1995.
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21 Nutria considered that it had suffered direct loss, which it estimated at D R 26 019 275, as a result of the delay in the collection of the olive oil, in the form of security, insurance and guarantee extension costs, including warehousing costs and interest from 5 December 1994.
22 Nutria further considered that the delay in collecting the product had led to an undue extension of the period during which its security remained frozen. It assessed its loss of earnings, in terms of the quantities of olive oil which it had been unable to buy and resell as a result of its loss of borrowing capacity following the extension of its guarantee, at D R 160 197 871, calculated by reference to the average official prices for the purchase of olive oil from producers.
23 By fax dated 7 August 1995, the Commission agreed to reimburse Nutria D R 29 547 575 in respect of the additional expenses which it had incurred as a result of the extension of the period of storage, insurance and protection of the goods and the cost of extending its bank guarantee. It nevertheless refused to compensate the loss of earnings alleged by Nutria, on the ground that the Community could not be held liable for loss claimed by a trader who does not have a credit facility.
Procedure before the Court and forms of order sought
24 Nutria therefore brought the present action by application lodged at the Registry of the Court of First Instance on 3 October 1995.
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25 It claims that the Court should:
— order the Commission to pay the applicant damages of D R 288 304 629, together with interest at 29% to run from 5 December 1994, for the loss, and loss of earnings, suffered during the 1994/95 olive oil marketing year as a result of the defendant's unlawful conduct;
— order the Commission to pay the applicant damages of D R 85 500 000 for the damage which it will wrongfully suffer to its business reputation as a result of the defendant's unlawful conduct; and
— order the Commission to pay the costs.
26 The Commission contends that the Court should:
— find the action inadmissible in law and, in the alternative, in fact; and
— order the applicant to pay the costs.
Admissibility of the application
27 By virtue of Article 111 of the Rules of Procedure, where it is clear that it has no jurisdiction to take cognizance of an action, the Court may, without taking further steps in the proceedings, give a decision by reasoned order. In the present case, the Court considers that it has sufficient information from the documents before it and that there is no need to take any further steps in the proceedings.
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The nature of the liability in issue
28 Before any possible decision that the Court clearly has no jurisdiction to settle this dispute, it must be determined whether any liability which the Community could incur as a result of the organization of the free supplies in question is not, contrary to the procedural position adopted by the parties, of an obviously contractual nature.
29 It is clear from the legal context of the present dispute and from the documents produced before the Court that the supplies in question have their basis in con- tracts and that the Commission's duty on which the claim for compensation is grounded is contractual in origin; nor, moreover, has it been alleged at any stage in the written procedure that the Commission has acted in breach of any non- contractual duty separable from the contractual relationship between the parties.
30 The Commission itself has stated, at point 1 of its rejoinder, that its relationship with both Nutria and the carrier was governed by a private-law contract — more specifically a service contract.
31 Furthermore, the date on which the product was to be made available by Nutria was fixed as 28 November 1994 by Regulation N o 2494/94, and that aspect of the Commission's offer was accepted by Nutria. Consequently, as it states in point 44 of its reply, Nutria expected the Commission to ensure collection of the olive oil on 28 November 1994.
32 It is thus with reference to the date of 28 November 1994, fixed by Regulation N o 2494/94 and agreed upon between the two parties as a result of Nutria's offer and its acceptance by the Commission, then changed to 5 December 1994 by the
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Commission with Nutria's tacit agreement, that Nutria alleges both the existence and extent of the delay in the collection of the olive oil by the carrier designated by the Commission and, consequently, the occurrence of a loss which it seeks to have made good by the Commission.
33 By thus alleging, as the basis for its claim for damages, that the Commission had neither complied with its duty to ensure that the olive oil was collected without delay by the carrier it had designated nor taken any corrective measures under the implementing powers conferred upon it by Regulation N o 1999/94 to ensure that the contractually determined date was respected, Nutria is placing the legal issue squarely in the context of the contractual relationship between the parties.
34 In Case C-142/91 Cebag v Commission [1993] ECR I-553, at paragraphs 11 to 13, the Court of Justice held that, according to Council Regulation (EEC) N o 3972/86 of 22 December 1986 concerning food-aid policy and food-aid management (OJ 1986 L 370, p. 1), such aid is provided on the basis of contractual undertakings. It noted that under Article 6(1 )(c), the Commission is to decide on the conditions governing the supply of aid, in particular the general conditions applicable to recipients, the engagement of the mobilization procedures and the supply of prod- ucts, as well as the conclusion of the corresponding contracts.
35 It considered that the respective rights and obligations of the Commission and suc- cessful tenderers are not determined entirely by Community regulations, since one essential element of the supply operation, namely the price, depends on the tenders put in by the tenderers and on the acceptance of the tenders by the Commission, as appears from the provisions of Article 9(1) and (3) of Commission Regulation (EEC) N o 2200/87 of 8 July 1987 laying down general rules for the mobilization in the Community of products to be supplied as Community food aid (OJ 1987 L 204, p. 1). The Court of Justice held that in those circumstances the supplies in question had been implemented by contracts.
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NUTRIA v COMMISSION
36 It is therefore clear that Nutria is likewise alleging, in support of its claim for dam- ages, that the Commission failed to perform an obligation of contractual origin and that its action is thus brought on the basis of a contract.
Jurisdiction of the Court of First Instance
37 Under Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 estab- lishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as subsequently amended, read in conjunction with Article 181 of the EC Treaty, this Court has jurisdiction to rule at first instance on disputes of a contrac- tual nature brought before it by natural or legal persons only pursuant to an arbi- tration clause; however, there is no such clause in the present case.
38 The fact that the parties have submitted the present dispute to the Court cannot be accepted as an expression of their intention that the Community judicature should have jurisdiction over the contract, since Nutria has specifically brought its action on the basis of Article 178 of the Treaty.
39 In the absence of an arbitration clause within the meaning of Article 181 of the Treaty, the Court cannot in fact rule on an action for compensation arising out of a contract when, as in this case, an action for damages based on Article 178 of the Treaty is brought before it. To do so would be to extend its jurisdiction beyond the limits placed by Article 183 of the Treaty on the disputes of which it may take cognizance, since that article specifically gives the national courts ordinary juris- diction over disputes to which the Community is a party (Joined Cases 133/85, 134/85, 135/85 and 136/85 Rau and Others v Bundesanstalt für landwirtschaftliche Marktordnung [1987] ECR 2289, paragraph 10).
40 It follows that this Court clearly lacks jurisdiction to take cognizance of this action for damages, which must therefore be dismissed as clearly inadmissible.
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Costs
41 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful and the defendant has applied for costs, the applicant must be ordered to bear all the costs.
O n those grounds,
T H E C O U R T O F FIRST INSTANCE (Third Chamber)
hereby orders:
1. The application is dismissed as clearly inadmissible.
2. The applicant shall bear the costs.
Luxembourg, 18 July 1997.
H.Jung B. Vesterdorf
Registrar President
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