C-386/96

DREYFUS v COMMISSION

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 16 December 1997 *

Legal and factual background to the actions ('Continentale'), and by Glencore (formerly for annulment brought before the Court of Richco Commodities), a company incorpo­ First Instance of the EC in 1993 by the rated under the laws of Bermuda, ('Glen­ appellants in the present cases core'), against the judgments delivered in respect of them on 24 September 1996 by the 2 Court of First Instance of the EC.

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OPINION OF MR LA PERGOLA — CASES C-386/96 P, C-391/96 P, C-403/96 P AND C-404/96 P

3. The subject-matter of Case C-404/96 P confined to points of law, the underlying ('the Glencore II case') is similar; in parallel factual background is necessarily of relative with the appeal I have just mentioned, Glen­ importance. core has challenged another judgment of the Court of First Instance, delivered on the same day, which ruled that the Bermudan company's application for annulment of another Commission decision was inadmis­ 4 sible.

4 — Case T-509/93 Richco v Commission [1996] ECR II-1181. The second decision contested by Glencore was contained in a letter which the Agriculture Commissioner had addressed to the financial agent of the Ukraine in the context of the granting of a medium-term Community loan to that country. By the decision in question, the Commission refused to rec­ ognise that the contract for the supply of wheat already signed by Ukraine's appointed agent with Glencore, as con­ The financing in question, which is limited in tracting undertaking, conformed to the applicable Commu­ nity regulations (sec point 21 below). duration, subject to precise disbursement 5 — See the judgments cited in footnotes 2 and 4 above. conditions and based on a case-by-case

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DREYFUS v COMMISSION

approach, consists of medium-term loans the necessary guarantees to ensure loan that complement those granted by interna­ repayment'. tional financial institutions.

6 — See A. Espino Morcillo and S. Kollias, 'Emprunts', in C. The framework agreement with the Russian Gavalda and R. Kovar (cds.), Répertoire de droit communau- Federation laid down specific rules for the taire, Paris, 1992 (and, in looseleaf form, January 1993), Vol. II, paragraphs 51 to 67. disbursement of the loan. There is an impor­ 7 — Decision of the Council of 16 December 1991 granting a tant provision in Clause 6 of the agreement medium-term loan to the Soviet Union and its constituent Republics (OJ 1991 L 362, p. 89). By means of this Decision the Council approved the proposal made the preceding month by the Commission, acting partly in its capacity as coordinating institution of the group of 24 industrialised countries of the Organisation for Economic Cooperation 8 — Commission Regulation (EEC) No 1897/92 of 9 July 1992 and Development (see the Commission's proposal of laying down detailed rules for the implementation of a 8 November 1991 for a Council decision on the granting of a medium-term loan to the Soviet Union and its constituent medium-term loan to the Soviet Union and its constituent Republics [in accordance with] Council Decision Republics. COM(91) 443 final; OJ 1991 C 320, p. 3). 91/658/EEC of 16 December 1991 (OJ 1991 L 191, p. 22).

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OPINION OF MR LA PERGOLA — CASES C-386/96 P, C-391/96 P, C-403/96 P AND C-404/96 P

regarding the exclusive use of the loan to 91/658. In accordance with Clause 6, dis­ cover irrevocable documentary credits bursement of the loan was subject to recog­ opened by the VEB, in international stan­ nition by the Commission that both the 10 dard form, pursuant to contracts for the commercial contracts concluded by the com­ supply of the products indicated in Decision petent Russian authorities and the documen­ tary credits issued by them complied with Decision 91/658 and with the framework agreement.

Finally, whereas commercial practice makes extremely wide use of irrevocable documentary credits — in which the issuer is directly obliged to make the requested payment on the simple condition that the documents presented by the ben­ eficiary conform with those indicated in the letter of credit — one speaks of revocable credit when the issuer makes no commitment towards the beneficiary, remaining at any event free to refuse payment (for example, because it considers that the financial situation of the applicant has deteriorated since 10. The granting of the loan to Ukraine, to the credit was opened). However, for obvious reasons, this form of documentary credit is extremely rare in commercial which the Glencore II case relates, followed practice (see A. Giampieri, 'Il credito documentario', Nuova giur. civ. commentata, 1992, Vol. II, p . 318 ff, in particular similar lines. On 13 July 1992 the EEC and pp. 318-319, and R. Jack, Documentary Credits, London, Dublin and Edinburgh, 1991, pp. 1 to 24). Ukraine signed a framework agreement pro­ 10 — The irrevocable documentary credit mechanism provided viding for the granting of a medium-term for in the loan contracts concluded by the Commission loan of the principal sum of ECU 130 mil­ with the VEB and the SEIB (see paragraphs 9 and 10 below) was in accordance with the 'Uniform customs and lion for a maximum term of three years via practice for documentary credits' drawn up by the Interna­ tional Chamber of Commerce in Paris (1983 revision, ICC the State Export-Import Bank of Ukraine publication No 400) and adopted by the Community as the ('the SEIB'), the financial agent of Ukraine standard form of documentary credit to be used by issuing banks. ('the framework agreement with Ukraine').

I would like to emphasise that the recogni­ tion of conformity of the commercial con­ 12. The Commission (i) took up a loan in tracts and documentary credits was subject the name of the EEC in order to raise the to compliance with all the conditions laid necessary resources to be placed at the dis­ down in Decision 91/658 and the framework posal of the Soviet Union and its constituent agreements. These included, in particular, the Republics in the form of loans managed by dual requirement that imports of products 1 the Commission; 1(ii) negotiated the loans to the constituent Republics on the basis of the agreements concluded with each of them 12 — Sec Clause 5(1)(b) of the loan contracts concluded by the Commission with the VEB and with Ukraine and the SEIB respectively. 13 — The Notice of Confirmation, which reiterated the compul­ 11 — In accordance with Article 2 of Decision 91/658, on 15 sory information that was required to be reproduced in all January 1993 the Commission acting as borrower con­ subsequent documents, including the documentary credits, cluded on behalf of the Community a loan agreement with was sent by the Commission to the VEB or the SEIB and a a consortium of banks led by Credit Lyonnais expressly to copy was sent to the bank appointed by the Commission to finance the loan granted to the Russian Federation. Under manage the payment procedures (termed the manager the agreement, the Community received the funds granted bank). to it Dy the lending banks in the form of advances paid 14 — By means of the reimbursement commitment, which was against notices of drawing. Indeed, given the link between sent under a covering letter from the manager bank, the the agreement in question and the loan granted to the VEB, Commission undertook to honour the obligation of the the loan agreement of 15 January 1993 provided that when issuing bank at the request of the confirming or advising the Commission issued a notice of drawing it could give bank designated by the supplier. Once the latter bank had Crédit Lyonnais express instructions to make the payment received the reimbursement commitment, it sent a reim­ in question direct to bank accounts other than those of the bursement request to the manager bank, which arranged for Community (such as that of the confirming or advising payment of the authorised amount in ecus within three bank or that of the issuing bank). days.

14. Finally, the financial agent designated by each of the two Republics, namely the VEB and the SEIB: (i) notified the commercial contracts to the Commission for recognition of conformity; (ii) after receiving the Notice On 27 November 1992 Continentale signed of Confirmation, issued irrevocable docu­ two sales contracts with the agent of the mentary credits eligible for the Community Russian Federation for the supply of respec­ guarantee (to the extent that they corre­ tively 450 000 tonnes of milling wheat at a sponded to the terms of the Notice) and, if requested by the supplier, subject to 16 — In the documentary credits they opened, the financial agents of the Russian Federation and Ukraine requested their correspondent bank in the supplier's country to advise the credit in question, nevertheless at the same time autho­ 15 — Sec also Articles 4(2) and 5(1) and (2) of Regulation No rising them to add, by means of confirmation, an autono­ 1897/92, which state that recognition by the Commission mous payment commitment if requested by the beneficiary. of the supply contracts concluded by the Republics con­ Copies of the letters of credit issued by the VEB and the cerned was subject, inter alia, to the dual condition that SEIB were sent to the Commission and the manager bank (i) the contracts were awarded 'following a procedure guar­ for verification of the conformity of the compulsory infor­ anteeing free competition' (including the presentation of at mation (see footnote 13 above). The manager bank in turn least three offers) and (ii) they offered 'the most favourable notified the confirming or advising bank that payment terms of purchase in relation to the price normally obtained would be made only after the Commission had received a on the international markets'. disbursement request from the VEB or the SEIB.

17 — The text of Clause 1 of the supply contracts concluded by Exportkhleb was as follows: 'This contract is concluded subject to approval of EES (reclini, EEC) authorities and the bank agreement between authorised Dank of Russian Federation and the bank authorised by the EEC authori­ ties'. Furthermore, Clause 4 of the abovementioned con­ tracts, entitled 'Payment', provided thus: 'This contract is subject to receipt (sic) by the relevant advising bank of an appropriate undertaking from the cover account holder (Bank authorised by EEC)'. Similarly, under the terms of the supply contract concluded For the purposes of this Opinion, the most by Ukrimpex and Glencore, it was the responsibility of the important of all the provisions of these stan­ agent of Ukraine 'to obtain all necessary agreements such as approval of the relating contract by the Commission of the dard contracts is the suspensory clause, European Communities'. With regard to payment for each shipment of the contractual goods, the contract provided which made performance of the contractual that it should be 'in accordance with the terms of an EEC obligations, including payment of the price, Loan Agreement'. 18 — Sec, for example, Clause 11 of the so-called standard Eur- subject to acknowledgment by the Commis­ grain 2 agreement signed by Exportkhleb with the indi­ sion that the conditions for disbursement vidual contracting undertakings at the same time as the con­ clusion of the supply contracts and expressly referred to in of the loan were fulfilled ('the suspensory Clause 6 of the latter.

17. Acting on instructions from Export- khleb, the VEB issued the irrevocable letters of credit in favour of Dreyfus, Continentale and Glencore on 4 February 1993 and for­ warded the related payment requests to the Following negotiations in which the selected Commission on 9 February. However, for companies had to align themselves on the reasons not specified in the judgments of the lowest bid (US $155 per tonne), agreement Court of First Instance against which these was reached between them and with Export­ appeals are directed, the credits did not actu­ khleb on the distribution of the fresh quanti­ ally become operational until several days ties to be delivered by 30 April 1993. later, between 16 and 25 February, depending on the case. It was only on these dates that the correspondent banks in the suppliers' countries finally received from the Commis­ sion the reimbursement commitments relat­ ing to the various transactions.

In particular, Dreyfus was allocated 185 000 tonnes, Glencore 450 000 tonnes and Conti­ nentale 20 000 tonnes of durum wheat (or milling wheat) and 300 000 tonnes of milling wheat (of which 120 000 tonnes were to be Because of the consequent delay in loading, supplied at the initially agreed price of the contracting undertakings informed US $140.40 and 180 000 tonnes at a price of Exportkhleb that they would not be able to US $150 per tonne). meet the original deadline for loading all the goods.

18. As the unit price of wheat on the world 19. On 9 March 1993 Exportkhleb informed market had, according to the appellants, the Commission of the contractual amend­ increased by about 13% (from US $132 to ments which it had agreed (but at that time 149.50 per tonne FOB Rouen) during the not yet formalised) with five of its selected brief period since the conclusion of the suppliers.

20. After the VEB had notified the new ten­ ders and amendments to the original con­ tracts to the Commission in the last 10 days of March, the Agriculture Commissioner informed the financial agent of the Russian Federation by a letter dated 1 April 1993 Exportkhleb informed Dreyfus, Continen­ ('the decision of 1 April 1993') that he was tale and Glencore of the Commission's prepared to authorise only the amendments refusal to approve the amendments to the relating to the postponement of the final original supply contracts as soon as the dates for delivery and payment, subject to Commission's letter was received, in the first compliance with the usual procedure. 10 days of April.

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21, The facts in Glencore II are similar. In from its intervention stocks at a price which May 1993 Ukrimpex, the State company- could be US $30 per tonne less than that appointed by Ukraine to negotiate the pur­ agreed between Ukrimpex and Glencore. chase of wheat eligible for Community Incidentally, in the fresh invitation to tender financing, issued an informal invitation to Glencore's offer was again accepted. tender, in response to which it received seven offers from international trading companies. Preference was finally given to the tender from Glencore, even though it was not the lowest in terms of price, as it was the only one to guarantee loading of the goods by 15 June 1993.

On 11 June 1993 Ukrimpex informed the appellant of the Commission's refusal to approve the contract concluded on 26 May 1993 and requested it to defer shipment of the goods. However, Glencore, which had already chartered a vessel for that purpose, nevertheless proceeded to deliver about On 26 May 1993 Glencore and Ukrimpex 40 000 tonnes of grain, for which Ukraine therefore signed a contract for the sale of never paid the vendor the amount due, 40 424 tonnes of wheat at a price of which was in the region of ECU 5 500 000. ECU 137.47 per tonne CIF free out. The SEIB notified the contract to the Commis­ sion for approval on 31 May.

In addition, Glencore (only in Case T-491/93, relating to the decision of 1 April According to the Court of First Instance, the 1993) and Dreyfus applied for compensation Community rules and the agreements con­ for the material damage that the Commission cluded between the Community and the allegedly caused them respectively as a result Russian Federation (or Ukraine) created a of its refusal (in their view illegal) to approve the amendments to the supply contracts con­ cluded with Exportkhleb. Finally, Dreyfus 19 —• In accordance with the fourth paragraph of Article 173 of also requested the Court of First Instance to the Treaty, '[a]ny natural or legal person may, under the order the Commission to pay the symbolic same conditions [as those applicable to actions Drought by a Member State, the Council or the Commission], institute sum of ECU 1 as compensation for non- proceedings against a decision addressed to that person or against a decision which, although in the form of a regu- material damage suffered as a result of the lation or a decision addressed to another person, is of direct statement made by an official of the institu­ and individual concern to the former' (my italics). As the Court of First Instance found, the objections of tion to the effect that Dreyfus had engaged inadmissibility raised by the Commission were not, how­ ever, based on the absence of individual concern on the part in unlawful practices in connection with the of the applicants (sec Case T-485/93, paragraph 48, Case negotiation of the said amendments. T-491/93, paragraph 49, Case T-494/93, paragraph 49, and Case T-509/93, paragraph 41, cited above in footnotes 2 and 4). It will be noted that only in Case T-509/93 did the Com­ mission submit a second plea in support of its objection of inadmissibility, namely the plea — which the Court of First Instance dismissed — alleging the absence of an actionable measure. The Court of First Instance ruled that, despite the fact that the loan contract between the Community, Ukraine and the SEIB — which at the wish of the contract­ ing parties was governed by English law —• contained a 23. As I have also mentioned above, in the clause assigning (non-exclusive) jurisdiction to the English courts, the Community courts remained competent to hear four judgments delivered on 24 September the action for annulment of the act by which the Commis­ sion refused to recognise a contract as being in conformity 1996 the Court of First Instance decided that with the Community financing conditions, since the act companies which have been awarded a sup­ produced legal effects in relation to the SEIB by depriving it of the right to submit a request for disbursement of the ply contract in the context of implementa­ loan. The decision of 12 July 1993 thus constituted an 'actionable measure' within the meaning of Article 173 of tion of a loan granted by the Community to the Treaty (sec Case T-509/93, cited in footnote 4 above, third countries are not directly affected by paragraphs 26 to 28). Sec also footnote 26 below.

In the contested judgments the Court of First Instance therefore concluded that the decisions challenged were not of direct con­ cern to Dreyfus, Continentale and Glencore and that the three companies were not entitled to seek annulment of those deci­ 20 sions. The Court of First Instance went on to state that the action of the Commission, which was not competent to make any assessment beyond verifying that all the conditions for the financing of the contracts concluded by Exportkhleb and Ukrimpex with the appel­ lants had been fulfilled, did not therefore affect the formal legal validity of the contracts in question nor did it modify the terms of the 25. The Court of First Instance also declared contracts, in particular the prices agreed in that the claims of Dreyfus and Glencore for each case. The riders signed by the parties on compensation for the material and non- 23 February 1993 therefore remained entirely material damage allegedly suffered by the valid 'irrespective of the Commission's two companies (see paragraph 22 above) decision not to recognise the agreements as being in conformity with the applicable provi­ sions', inasmuch as those decisions did not 20 — Case T-485/93, paragraphs 48 to 55, T-491/93, paragraphs take the place of a decision of the competent 49 to 57, Case T-494/93, paragraphs 49 to 57, and Case T-509/93, paragraphs 41 to 49 (cited in footnotes 2 and 4 respective national authorities. above).

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were admissible, noting inter alia the In the view of the appellants, the Court of autonomous nature of the action for dam­ First Instance committed two errors of law: ages provided for by Article 178 and the sec­ (i) by wrongly applying the fourth paragraph 21 ond paragraph of Article 215 of the Treaty. of Article 173 of the Treaty in ruling that the The Court of First Instance finally ruled that actions were inadmissible for lack of direct the procedure relating to those claims should concern, and (ii) by adopting contradictory be continued in relation to the substance. reasoning in various regards. After the present appeals were lodged by Dreyfus and Glencore, however, the pro­ cedure in Cases T-485/93 and T-491/93 was stayed by orders of 27 January 1997 and 26 February 1997 respectively.

21 — See Case T-485/93, paragraphs 65 to 75, and Case T-491/93, paragraphs 62 to 67 (cited in footnote 2 above). The Court of First Instance held that the Commission, which had also pleaded the inadmissibility of the applications for damages They contend that it follows from that case- submitted by Dreyfus and Glencore, had not succeeded in law that the existence of direct concern proving that the lodging of such claims constituted an abuse of process, the claims being actually aimed at securing with­ should be assessed on the basis of a different drawal of a decision which had become definitive. In the opinion of the Court of First Instance, this was particularly criterion, namely whether or not the con­ clear in the case of the action by Dreyfus for compensation for non-material damages, which was based on alleged con­ tested act causes direct damage to the legal or duct of the Commission distinct from the act that the com­ material situation of the appellant. They pany was simultaneously seeking to have annulled. maintain that numerous judgments have 22 — For the sake of simplicity, in the discussion that follows I have therefore summarised the common grounds of appeal acknowledged direct concern on the part of raised by the individual appellants — which in fact are practically identical in substance — and have attributed the appellant even in the absence of any legal them to the companies without distinction, ignoring formal link with the Commission or with the differences in the presentation and development of die arguments in the procedural acts relating to the four cases. addressee of the contested decision.

In particular, in triangular relationships of non-compliance with the conditions for the kind in question in the present proceed­ Community financing laid down in Regula­ ings, whenever the interposed person (in tion No 1897/92 to be exercised in an arbi­ other words, the competent national auth­ trary manner. That power therefore goes ority appointed to implement the Commu­ hand in hand with an obligation to exercise it nity measure) does not have independent correctly, which is subject to scrutiny by the power of assessment and its decision auto­ Court. matically derives from that of the Commis­ sion, the economic agent — having no legal recourse against the national authority — should be held to be directly concerned and entitled to bring an action under the fourth paragraph of Article 173 of the Treaty. 28. In the alternative, Glencore refers to the Community case-law relating to the fourth paragraph of Article 173 of the Treaty, according to which individuals may be directly concerned by the Community mea­ sures on which subsequent provisions are In the particular circumstances obtaining in based, the contents of which are known with the present cases, the Commission's decision certainty or a high degree of probability. left the competent national authorities with no margin of discretion in the fulfilment of their contractual obligations. Indeed, in the light of the contents of the supply contracts, and in particular the terms of Clause 4 on 23 the obligation to pay the sum due, non- disbursement of the loan to the republic 29. In addition, Dreyfus, Continentale and involved would cancel its obligation to pay Glencore assert that, contrary to the view the agreed sum (or, mutatis mutandis, the adopted by the Court of First Instance, in new higher price agreed when amending the the specific circumstances of the system of original contracts that had already been emergency assistance established by the approved). Moreover, in each of the present Community the contested decisions took the cases Community financing constituted not place of decisions within the competence only the suspensory condition to which per­ of the Russian and Ukrainian authorities formance of the contract had been made sub­ respectively. ject in law but also in reality the only pos­ sible means of payment.

relating to the prices and the quantities sup­ respective parties to the supply contracts, it plied). In this way, 'by rearranging as it saw was strictly wrong for the Court to conclude fit contracts' to which it was technically not that the admissibility of the actions must a party, the Commission substituted its own depend on the intentions of the national assessment for the will of the parties. authorities and the contracting undertakings. In reality, the dual condition on which the parties made the validity of their respective contracts depend was the same condition earlier imposed by the Commission on the borrowing republics, that is to say the need Moreover, in order to honour their commit­ to obtain approval for the contracts in ques­ ments towards Dreyfus, Continentale and tion and for the documentary credits opened Glencore, the Russian and Ukrainian to pay for the deliveries. authorities were completely dependent on recognition by the Commission for purposes of Community financing. In fact, once they learnt of the adoption by the Commission of a decision of non-conformity of the contract (or mutatis mutandis of the riders to the contracts that had already been approved), Moreover, even if it was correct to conclude the competent national authorities — given that the admissibility of the actions their state of insolvency, which was the very depended on the intention of the parties, the reason for the financial assistance granted by Court of First Instance ultimately added a the Community — could not have pro­ further condition to those provided for in ceeded with the importation of cereals in the fourth paragraph of Article 173 of the accordance with the signed agreements since Treaty for the admissibility of actions for payment of the corresponding price was not annulment brought by individuals against covered (wholly or partly) by the loan. decisions addressed to another person, that is to say the condition that the harm directly caused by the contested act to the position of the applicants not be the result of a decision taken voluntarily by them in the exercise of their private freedom. 30. According to the appellants, the Court of First Instance then erred in basing its rul­ ing that the companies were not directly concerned by the contested decisions on the fact that the effect of these acts on their legal or material situation was the result of a prior voluntary act. 31. Finally, in the view of Glencore, the con­ tested judgments also conflict with the trend of the case-law, which states that a person may be directly concerned within the mean­ ing of the fourth paragraph of Article 173 even in the absence of a legal link with the In the first place, as the suspensory condition body from which the contested act emanates was directly and objectively a consequence and even if the Community measure does of the factual and legal situation of the not take the place of a decision by the

According to Glencore, that trend stems in particular from the judgments of the Court of Justice and the Court of First Instance, which on several occasions have recognised the admissibility of an action for annulment brought by a potential recipient of State aid In fact, it is submitted, the exact opposite against the Commission decision addressed was true, for as performance of the contract to the relevant Member State declaring the was subject to the suspensory condition (see aid in question to be incompatible with the paragraph 27 above), the Commission's common market. adverse decisions directly affected the legal situation of the contracting undertakings by denying them the right to obtain the price (or the new price) agreed with the competent national authority. As the competent national authorities stipu­ lated in the present cases with regard to the payment of the purchase price of the goods, the State granting an aid can also agree with the recipient undertaking to make the dis­ bursement of the aid dependent on the approval of the Commission. The position of 33. Continentale further complains that the Glencore, which moreover was in constant Court of First Instance, after having noted contact with the Commission during the that the Commission had requested the for­ period preceding the adoption of the con­ mal resubmission by the VEB of the request tested decisions, was therefore very similar for approval of the riders to the supply con­ to that of an undertaking which was a poten­ tracts that had already been forwarded by tial recipient of State aid, even from the pro­ Exportkhleb, and that by means of the cedural point of view. decision of 1 April 1993 the Commission had refused to approve the amendments to the contracts, contradicted itself by ruling that the Commission's refusal did not take the place of a decision by the Russian authori­ 24 ties. 32. (ii) In the opinion of the appellants, the Court of First Instance also infringed the general principle that every judicial body has an obligation to state the reasons for its deci­ 24 — Similarly, in Case T-509/93 the Court of First Instance, having observed that in its decision of 12 July 1993 'the sions, inasmuch as there were grave inconsis­ Commission officially informed the SEIB of its refusal to tencies in the grounds for the contested approve the contract which had been submitted to it', held that the contested decision did not take the place of a judgments. In the first place, they contend decision taken by the Ukrainian authorities.

34. The Commission first raises an objection of inadmissibility against the four appeals, maintaining that — apart from the plea relat­ ing to contradictory grounds — in substance the arguments put forward merely reproduce 35. As a preliminary matter, the Commis­ the pleas and arguments developed at first sion observes that the interpretation of the instance, including those based on facts suspensory condition is far from clear. expressly rejected by the Court of First Indeed, it does not appear that the arbitra­ Instance. tion tribunal of the Moscow Chamber of Commerce and Industry (or the correspond­ ing jurisdiction in Kiev), which alone is entitled to interpret the supply contracts, has ruled on the exact scope of the clause in question. Above all, in the correspondence with Exportkhleb in the days following the Moreover, the analysis by the Court of First adoption of the decision of 1 April 1993, Instance both of the loan contracts between Dreyfus showed that it interpreted the sup­ the Community and the republics involved 25 ply contract as 'a firm contract'. and of the supply contracts concluded by the appellants in the present proceedings with the State companies appointed to negotiate the purchases of wheat was, in the Commis­ 25 — See the fax letter of 6 April 1993 to Exportkhleb pressing for payment of the higher price agreed, in which Dreyfus sion's opinion, factual and could not be the stated: 'Wc trust you will understand that wc consider wc have with you a firm contract ... and must insist on fulfil­ subject of appeal. ment of your obligations under the contract.'

26 — Indeed, during the oral phase of the procedure the repre­ sentatives of the Commission claimed that actions for the annulment of the decision of 1 April 1993 and the decision of 12 July 1993 which hypothetically might have been brought before the Community Court by the addressees themselves, namely Exportkhleb and Ukrimpex, would also have been inadmissible (without prejudice to their right to recourse to the competent national jurisdiction, and in par­ In particular, granting the present appeals ticular to the English courts, by bringing an action for non- would, in the view of the Commission, nec­ fulfilment of the respective loan agreement). As the repre­ sentatives of the Commission expressly acknowledged, essarily reverse the case-law developed by however, this argument had already been rejected by the Court of First Instance in the judgment in Case T-509/93 the Court with regard to the financing of (sec footnote 19 above) and it is no accident that it was not raised by the Commission in any of the written procedures projects by the European Development in the present cases. Fund (see footnote 31 below).

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In addition — the Commission's representa­ tives observed at the hearing — the link that 40. Lastly, with regard to the second ground the appellants allege exists between the of appeal relied on by Dreyfus, Continentale Community loan and the essential purpose and Glencore, the Commission denies that (catisa) of the supply contracts (see footnote the Court of First Instance analysed the legal 64 below) is anything but proven. Indeed, consequences of the suspensory condition, according to the Commission, it appears that mentioned several times above, and con­ undertakings similar in size to Dreyfus, cluded that Exportkhleb and Ukrimpcx had Continentale and Glencore sold cereals to neither a legal obligation nor the resources to the Soviet Union before its dissolution with­ pay the agreed price. Above all, it would not out recourse to any system of financing or be for the Court of First Instance to carry other form of assistance from the Commu­ out such an analysis, as the interpretation of nity. the contracts fell solely within the jurisdic­ tion of the competent arbitration bodies (see paragraph 35 above). The Court of First Instance, by contrast, confined itself in the judgments to stating the applicants' argu­ ments.

39. The Commission also contests Glen- core's arguments that the direct concern of the company had to be deduced from the tenor of the two contested decisions — which was such as to make it certain or 41. In addition, the Commission contends highly probable that the Russian and Ukrai­ that the allegation of contradictory reasoning nian authorities respectively would not have should in any case be dismissed inasmuch as paid the agreed price in the absence of Com­ the decisions of 1 April 1993 and 12 July munity financing — or, in the alternative, 1993 in themselves had no direct effects on from Community case-law regarding State the position of the appellants in relation to aid. Exportkhleb and Ukrimpex respectively.

42. Finally, the Commission reiterates that none of the contested judgments proves that the VEB acted as a mere 'conduit' between 44. As you know, that procedure related to the contracting undertakings and the Com­ an appeal brought by Geotronics, a company mission. The Commission's insistence that participating in a restricted invitation to ten­ the contracts concluded by Exportkhleb be der (for the supply of electronic tachometers submitted to it by the VEB can be explained for use in the land reform programme) by the fact that the approval of conformity issued jointly by the Commission and the gave rise to a financial obligation (in other Romanian Government and financed under words, a debit against the loan to the Russian the PHARE programme, against the judg­ Federation). Hence, the Commission could ment in which the Court of First Instance deal only with a body competent to enter had dismissed as inadmissible the application into financial operations. These facts do not, for annulment brought by that company in the Commission's view, in any way con­ against a letter addressed to it by the Com­ tradict the conclusion of the Court of First mission. Instance that the contested decisions did not take the place of the initial choice of suppli­ ers by the Russian and Ukrainian authorities respectively.

The judgment of the Court of Justice in More precisely, Geotronics, after having Geotronics and its relevance for assessing been informed by the competent authority whether the present appeals are well representing the Romanian State that its ten­ founded der had been successful and that the supply contract had been submitted to the contract­ ing authority for approval, learnt from a fax letter sent to it by the Commission that its tender had been rejected because it did not satisfy the condition of the invitation to ten­ der that the instruments to be supplied origi­ 43. After the close of the written procedure, nate in a Member State or a beneficiary however, the Court of Justice asked the country under the PHARE programme.

The Court of First Instance therefore excluded the possibility that in this matter measures issued by the Commission could affect the legal situation of the tenderer and therefore be the subject of an action for annulment such as that brought by Geotron­ In the abovementioned judgment the Court ics against the Commission's letter described of First Instance first recalled the division of above. The Court of First Instance stated roles between the Commission and the that the annulment of that letter would not authorities of the beneficiary State in imple­ avail Geotronics in any event, since it could menting actions and projects funded under not in itself call in question the contract the Community's cooperation policy, and between the Romanian authorities and the specifically in the context of external aid 29 firm to which the contract was awarded. granted under the PHARE programme. It then observed that contracts financed by that programme must be regarded as national contracts, which arc binding only on the economic operators involved and the benefi­ ciary country, which has the power to pre­ pare, negotiate and conclude the contracts. 46. As you know, the judgment I have described here was set aside by the Court of Justice on appeal in so far as it related to the inadmissibility of the action under the fourth paragraph of Article 173 of the Treaty.

On the basis of those considerations, the Court concluded that the Commission's decision itself had binding effects likely to affect the legal position of Geotronics. The The Court held that the Commission's decision of the Court of First Instance, decision had to be considered separately which had found the company's action for annulment to be inadmissible, was therefore 32 set aside.

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48. Dreyfus, Continentale and Glencore rely Instance and endorsing the Opinion of the on that judgment in order to dispel any Advocate General, the Court of Justice dem­ doubt as to the admissibility of their actions onstrated that it considered this option for in the present cases. Moreover, they maintain the Romanian authorities to be purely theo­ that in the Geotronics judgment the Court retical. met the need to provide economic operators with concrete legal protection, a need which the EDF case-law did not satisfy.

The appellants contend that in the Geotron- ics case, by contrast, the applicant was excluded from the tendering procedure as a direct consequence of the Commission's First and foremost, they contend that the decision to reject its offer. The Romanian Commission's decisions not to approve authorities, for their part, remained free to either the riders to the supply contracts award the contract to the undertaking and had indeed notified Geotronics of their intention to give preference to the company. 33 — The judgment of the Court of First Instance that was However, this decision would have required annulled as to this part emphasised the fact that 'the appli­ the Romanian Government to forgo Com­ cant's representative conceded at the hearing that, in this case, the Romanian Government was free to award the con­ munity financing. By departing on this point tract to Geotronics, notwithstanding the Commission's refusal to grant it Community aid' (sec Case T-185/94, cited from the analysis made by the Court of First in footnote 28 above, at paragraph 30).

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concluded between Exportkhleb and the those subject to the EDF case-law in that the three appellants or the contract concluded successive versions of the Lomé Convention between Ukrimpex and Glencore were made no express provision for the ACP State adopted in the exercise of its own powers. automatically to forgo Community financing if it decided to award the contract to a par­ ticipant which was not approved by the Commission.

This fact, in the appellants' opinion, was suf­ In the latter cases, the action for annulment ficient to distinguish the present cases from of the Commission's decision was brought

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by the third party undertaking, which the the Commission for technical advice (for national authorities had excluded from the example, during the preparation of pro­ procedure even before the intervention of grammes subject to financing) or financial the Commission. Hence, there did not exist assistance (for example, in order to pay between the applicant undertaking and the experts appointed to draw up the terms of beneficiary country a contract whose perfor­ invitations to tender). mance depended, either in fact or in law, on recognition by the Commission.

Dreyfus, Continentale and Glencore contend 54. Given the underlying similarity between that the situation is actually the reverse in the decentralised systems of EDF and the present appeals: first the competent PHARE financing, the Geotronics judgment national authorities awarded the contracts to of the Court could, in the opinion of the the applicant companies and then the Com­ Commission, be explained in the light of the mission refused to grant approval for the specific circumstances of the case. purpose of financing the contracts that had already been concluded.

56. First, in the present case the Commis­ sion did not take initiatives likely to 'break' In the opinion of the Commission, that tem­ the legal relationship between the contract­ poral distinction is reflected in the different ing companies and the State bodies scope of the legal protection available to the appointed to conduct and finalise the nego­ applicants. Indeed, as Advocate General 34 tiations for the award of the contract. Tesauro pointed out in his Opinion, Whereas in the Geotronics case the Commis­ Geotronics could not apply for a review of sion's letter had been addressed to the com­ the legality of the contested act to any court pany itself, in the cases in point the address­ other than the Community judicature, given ees of the contested decisions were the that in connection with contracts financed financial agents of the republics involved. by the PHARE programme the unsuccessful Hence, in the present disputes there was no tenderer is not entitled to have recourse to a Commission decision which took the place special arbitration procedure. The Commis­ of a decision by the national authorities. sion contends that the situation is different in the case of Dreyfus, Continentale and Glen- core. Despite the inadmissibility of their respective actions for annulment before the Community Court, the appellants remained free to invoke the arbitration clause provided for in the supply contracts for any dispute involving interpretation and implementa­ 35 tion, by initiating the prescribed procedure 57. Moreover, the decision of 1 April 1993 in order to obtain from the arbitration tribu­ and that of 12 July 1993 were, according to nal of the Chamber of Commerce and the Commission, different in nature to the Industry in Moscow (or the equivalent tribu­ decision addressed to Geotronics. The mea­ nal in Kiev) a ruling on the obligation of sures against which the appeals have been Exportkhleb (or Ukrimpex) to honour the brought did not relate to a refusal to approve obligation to pay the price on the agreed the tenders submitted by the three compa­ terms. nies in the two invitations to tender and their consequent exclusion from those procedures. The measures in question came at a com­ pletely different time in relation to the 34 — Cited above (in footnote 30), paragraph 21. course of events, namely after the award, 35 — See footnote 18 above and the related passage in the text.

This appears to me to be precisely the substance of the claimed infringements of the 58. In my opinion, the objection of inadmis­ fourth paragraph of Article 173 and of the sibility of the appeals raised before the Court general obligation to state reasons of which by the Commission (see paragraph 34 above) Dreyfus, Continentale and Glencore com­ is without merit. plain. According to the three companies, the errors committed by the Court of First Instance in assessing their respective interest in obtaining annulment of the decisions of 1 April 1993 and 12 July 1993 related not — it should be noted — to the facts found in the cases but to the legal assessment of those Under Article 51 of the EC Statute of the factual circumstances, which they consider to Court of Justice, any plea which is confined be inadequate and illogical. Moreover, it can­ to challenging the findings of fact made by not, in my opinion, be seriously contested the Court of First Instance must be rejected that the applicants clearly stated, as they are 36 as inadmissible. However, when the Court required to do by the case-law of the 39 of First Instance has found and assessed the Court, the aspects of the judgments of the facts, defined their legal nature and deter­ Court of First Instance which they criticise mined the legal consequences, the Court of and the legal arguments which specifically Justice certainly has jurisdiction to exercise support the request to set aside those judg­ the power of review conferred on it by ments. 37 Article 168a of the Treaty. Although it is true that in lodging an appeal the applicant may criticise the Court of First Instance for 38 — Sec the order of 11 July 1996 in Case C-325/94 P WWF v having wrongly applied rules of law the Commission [1996] ECR I-3727, paragraph 30, and Case observance of which it had to ensure, it is C-278/95P Siemens v Commission [1997] ECR 1-2507, paragraph 44. For example, the Court has stated that an equally true that such wrongful application appeal against an order on an application for interim relief, in which it is claimed that the applicant's interest in obtain­ ing suspension of operation of the decision at issue was inadequately examined, is not confined to contesting the findings of fact made by the judge hearing the application for interim relief but must be understood as seeking to 36 — Sec, among many others, Case C-326/9! P de Compte v establish that the contested order contains an error in law as Parliament [1994] ECR 1-2091, paragraphs 29, 38, 41, 50, regards the legal assessment of the facts in point (sec the 57, 72, 75, 86, 88, 90 and 101. order of 30 April 1997 in Case C-89/97 P(R) Moccia Irme v Commission [1997] ECR 1-2327, paragraph 40). 37 — Sec, among many others, Case C-136/92 P Commission v Brazelli Lualdi and Others [1994] ECR 1-1981, paragraph 39 — Sec, among many others, the order of 26 April 1993 in Case 79, and the order of 17 September 1996 in Case C-19/95 P C-244/92 P Kupka-Flońdi v Economic and Social Commit­ San Marco Impex Italiana v Commission [1996] tee [1993] ECRI-204I , paragraph 9, and Case C-153/96P ECR 1-4435, paragraph 39. de Rijk v Commission [1997] ECR 1-2901, paragraph 15.

As you know, the case-law of the Court on The mechanism established by that article the requirement of direct concern initially provides, 'in any specific case of unlawful followed a more formalistic approach, but conduct, the possibility of effective legal pro over the years the Court has gradually, yet 40 tection for the interests affected thereby'. increasingly unequivocally, come to agree In particular, the aim of the fourth paragraph with the definition contained in the litera (previously the second paragraph) of ture, which 'is wide enough to encompass Article 173 of the Treaty 'is to ensure the not only the direct formal effects but also the legal protection of individuals in all cases in direct material effects on a person of a which they are directly and individually con cerned by a Community measure — in whatever form it appears — which is not 41 43 — See the Opinion of Advocate General Da Cruz Vilaça deliv addressed to them'. As 'the words and the ered on 21 January 1987 in Case 333/85 Mannesmdnn- natural meaning of this provision justify the Rõhrenwerke and Benteler v Council [1987] ECR 1381, at p. 1388, in particular p. 1397.

60. According to the settled case-law of the Salerno and Others v Commission and Council [1985] 2523, Court, it is essential 'to determine whether paragraph 31, Case 207/86 APESCO v Commission [1988] ECR 2151, paragraph 12, Case C-198/91 Cook v Commis- sion [1993] ECR I-2487, paragraph 23, Case T-3/93 Air France v Commission [1994] ECR II-121, paragraphs 80 and 81, Case C-135/92 Fiskano v Commission [1994] ECR I-2885, paragraphs 23 to 30, Case T-96/92 Comité 40 — Sec the Opinion of Advocate General VerLoren van The- Central d'Entreprise de la Société Générale des Grandes maat delivered on 14 October 1982 in Case 11/82 Piraiki- Sources and Others v Commission [1995] ECR II-1213, Palraiki and Others v Commission [1985] ECR207 , at paragraphs 38 to 46, Joined Cases T-480/93 and T-483/93 p. 208, point 4.2. Antillean Rice Mills v Commission [1995] ECRII-2305, paragraph 63, Case T-266/94 Skibsvaerftsforeningen and 41 — See Case 69/69 Alean and Others v Commission [1970] Others v Commission [1996] ECRII-1399, paragraph 49, ECR385, paragraphs and Case T-47/95 Terres Rouges Consultant and Others v 42 — See Case 25/62 Plaumann v Commission [1963] ECR 95, Commission [1997] ECR II-481, paragraphs 57 to 59). especially pp. 106 and 107.

61. The Piraiki-Patraiki case is of particular relevance for the purposes of the present The 'other factors' mentioned by the Court 45 Opinion. The Court held in those pro­ were the following: (i) even before being ceedings that the contested act — that is to authorised to do so by the Commission say the decision whereby the Commission the French Republic had applied a very had authorised the French Republic to insti­ tute a general quota system on imports of cotton yarn from Greece — was of direct concern to the applicants (the company 46 — The Commission claimed that the application was inadmis­ sible on the grounds that, from the specific point of view of Piraiki-Patraiki and the other main Greek the absence of a direct interest, such an interest cxistt 'in cases where a private person is concerned by a Community undertakings which produce and export the decision and no national measure is interposed between him and that act. In this case, however, the contested decision products in question to France) within the necessitated national implementing measures from which in meaning of the fourth paragraph of turn flowed direct consequences for private persons. All the Commission did was authorise a Member State to take Article 173 of the Treaty, despite the fact that measures limiting imports of certain products in a defined sector of the economy; the decision itself merely establishes in the case in point it was merely possible a scheme which France is authorised to put into force, (and not certain) that the Member State to remaining free to do so or not, to apply higher import quo­ tas, or to apply quotas for a shorter period. ... [T]hc fact that the decision in question was notified [to the French Government and] to the Greek Government and not to undertakings in the Greek cotton industry is further proof that the matter involves relationships and interests which 44 — Sec the Opinion of Advocate General VerLorcn van Thc- concern solely the Community and certain Member States' (ibid., paragraph 3.1 of the section 'Facts'). maat in Case 11/82 (cited above in footnote 40), point 4.6. 45 — Case 11/82 Piraiki-Palraiki v Commission [1985] ECR 207. 47 — Ibid., paragraph 7.

The Court has repeatedly stated that in the framework of the financial and technical cooperation provided for by successive In the light of those factors, the Court held Lomé Conventions the measures adopted by that it was legitimate to expect that France the Commission in the course of the pro­ would actually adopt the system that had cedure for the placing or implementation of been authorised by the decision that was the a public contract financed by the EDF and subject of the application by the Greek cot­ concluded by the associated ACP State are ton exporters. The Court therefore con­ not of direct concern to the tendering under­ cluded that 'in those circumstance the possi­ taking. According to the Court, such mea­ bility that the French Republic might decide sures are solely intended to establish whether not to make use of the authorisation granted or not the conditions for Community to it by the Commission decision was financing are met and the relevant proce­ entirely theoretical, since there could be no dures have been complied with and fall doubt as to the intention of the French exclusively within the relations between the authorities to apply the decision. It must 52 Commission and the State involved. therefore be accepted that the decision at issue was of direct concern to the appli­ 49 cants.'

62. This approach of the Court, based on the direct material effects of the contested 63. Following the example of Advocate 53 act on the position of the applicant, is very General Tesauro in the Geotronics case, I 50 shall refrain here from adopting a position realistic. By contrast, a different and more formalistic line is adopted in EDF case-law. on the correctness of the line pursued by the One need only consider the underlying con­ Court in the EDF case-law with regard to cept of the triangular relationship between the admissibility of applications under the the Commission, the beneficiary State and

54 — In passing, I muse nevertheless acknowledge that the criti­ By contrast with the cases subject to EDF cism levelled in the literature against the EDF case-law is not lacking in persuasiveness. It has been observed, in par­ case-law, in the Geotronics case the applicant ticular, that 'the approval by the Commission delegate or had lost any chance of actually being Chief Authorising Officer of the ACP authority's choice of a particular tenderer docs directly concern the unsuccessful awarded the contract simply because the tenderer, on the grounds that the discretion which remains with the ACP State whether or not to follow the approval or disapproval is in most cases a purely theoretical one. The object of the provisions on financial and technical coopera­ tion is to provide Community financing for projects which the A. C. P. State would otherwise have to finance cither 55 — See the Opinion of Advocate General VerLoren van The- itself, or from other less beneficial sources. ... Although it is maat delivered on 14 May 1985 in Case 118/83 CMC and not specifically stated in the [Second Lomé] Convention, Others v Commission [1985] ECR 2325, at p. 2326, para­ the logical inference from its provisions is that an ACP graph 3, and the judgment in Case C-257/90 (cited above in State which docs not follow the approval or otherwise of footnote 31), paragraph 7. the Commission's representative must do without Commu­ 56 — Sec the Opinion of Advocate General VerLoren van The- nity financing. It could therefore be argued that it is maat delivered on 22 May 1984 in Case 126/83 STS v Com- unlikely that the ACP State will decide to award the con­ mission [1984] ECR 2769, at p. 2781, paragraphs 3.3 and tract to a tenderer which is not approved by the Commis­ 4.1. sion' (see Brown, op. cit. in footnote 50 above, p. 425). 57 — See footnote 31 above and the related passage in the text.

Hence, only if that option existed could the possibility that the decisions of 1 April 1993 and 12 July 1993 were of direct concern to 66. Similar reasoning should, in my opinion, the appellants in the present cases be legiti be applied to the analysis of the admissibility mately ruled out. of the applications made by the Court of First Instance, which is at the origin of today's appeals: in the circumstances described above, any margin of discretion left to the competent Russian and Ukrainian On that premiss, it is now necessary to ascer authorities as to the application of the tain whether or not the measures adopted by disputed decisions should have been assessed the Commission called in question the in relation to their remaining option to assessment already made — in the exercise of perform the contracts on the price terms their own powers provided for and regulated contested by the Commission, but naturally by Regulation No 1897/92 and by the frame work agreements — by the competent authorities of the Russian Federation and Ukraine, and thus of themselves made it 58 — This appears to me to be the correct interpretation to put on the statement of the Court recalled in the text, even impossible, in fact and in law, to perform the though it is less explicit than that of the Advocate General in paragraph 19 of the Opinion cited (see footnote 30 supply contracts on the terms indicated

sions in which the Commission refused to tions regarding the functions performed by the Commis sion in the framework of the cooperative decision-making finance payment under the supply contracts process set up by the Second Lomé Convention, the Presi dent stated that 'it cannot be excluded that a thorough concluded by Dreyfus, Continentale and examination might reveal the existence of an act of the Glencore respectively with Exportkhleb and Commission which can be isolated from its context and which may be of such a nature as to enable an action to be Ukrimpex did not affect the legal validity of brought for its annulment' (see the Order in Case 118/83 R CMC v Commission [1983] ECR 2583, paragraph 47; the the contracts in question. italics arc mine). Above all, in the Geotronics case not only did the Commission observe before the Court of First Instance that 'the procedure for awarding contracts estab lished by the PHARE Programme is comparable to that applied to contracts financed by the [EDF]' but in the grounds of the judgment of the Court of First Instance on the inadmissibility of the action for annulment the case-law of the Court relating to public contracts financed by the EDF was cited 'by way of analogy' (sec Case T-185/94, The Court of First Instance appears to have

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execute the contracts at the prices agreed recognise the conformity of the contracts respectively with the suppliers: the Commis­ themselves and of the documentary credits sion's decision (on the compatibility of the issued by the VEB and the SEIB (on instruc­ contracts with the statutory terms for financ­ tions from Exportkhleb and Ukrimpex) for ing) did not take the place of the decision of the purposes of implementing those con­ the national authorities (on the overall econ­ tracts. In particular, no payment could be omic and commercial benefit of the indi­ made unless the bank designated in the sup­ vidual contractual terms). ply contract received an appropriate reim­ bursement commitment issued by the Com­ mission (or, more precisely, from its manager 6 bank). 0

68. In my opinion, however, even if the Moreover, the appellants have explained, per­ analysis of the Court of First Instance, which suasively in my opinion, that after having was based on a purely legal approach, is to notified the purchasing bodies in the cus­ be endorsed it is anything but certain that tomary manner (sec paragraph 35 above) the Commission's two refusals did not affect they refrained from any initiative to bring the various parties' rights and obligations their claims for performance of the contracts arising out of the supply contracts. before the competent arbitration bodies, pre­ cisely because they were aware that such claims were manifestly unfounded in the light of the clear wording of the suspensory condition.

Moreover, as the appellants have remarked, the concrete operational arrangements for the payment mechanism set up by the frame­ work agreements demonstrate in the clearest manner possible that, for the purposes of sat­ isfying the obligation to pay for the deliv­ I shall refrain from considering the accuracy ered goods, the supply contracts were eco- of that criterion. However, it is very doubt­ nomically contingent on the granting of ful that it can be applied to the cases in Community loans to the two republics. point. One should not lose sight of the fol­ lowing fact: between the supply contracts concluded by the Russian Federation and Ukraine with the appellant companies 'downstream' and the loan contracts con­ cluded by the two republics with the Com­ On the basis of the remarks made above (see mission 'upstream' there existed — leaving paragraphs 8 to 14), I note that under the aside its express formalisation by means of two emergency loans granted by the Com­ the suspensory condition — an undeniable munity to the Russian Federation and and objective socio-economic link, known to Ukraine the issue of documentary credits by all the actors in the triangular relationship. the respective financial agents of the two republics was not necessarily sufficient to

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provide certainty to the contracting under­ Hence, what is important here is not the sus­ takings that they would receive payment for pensory condition desired by the parties but the goods, nor to the correspondent bank of the objective economic dependence of the the VEB or the SEIB — acting as confirming supply contracts on the loan agreements on bank at the request of the contracting under­ which they were predicated. The insertion of 62 taking — that the sums advanced would be the suspensory condition into the contracts 6 reimbursed. In fact, the guarantee of perfor­ merely reflected that dependence. 4 mance by the purchaser represented by the documentary credit is in principle worth only as much as the creditworthiness of the issuing bank. However, the creditworthiness of the VEB and the SEIB at the time of the 6 events at issue was modest, to say the least. 3

70. That having been said, I consider that, partly in the light of the problems of juris­ diction raised by the Commission (see para­ graphs 35 and 68 above), it is neither neces­ sary nor permissible here to examine in further detail the question whether the legal position of the Russian and Ukrainian purchasers in relation to performance of the

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OPINION OF MR LA PERGOLA — CASES C-386/96 P, C-391/96 P, C-403/96 P AND C-404/96 P

contracts concluded with the appellants can republics cannot possibly have had an inter­ be described as a true obligation. est in performing the contracts signed with Dreyfus, Continentale and Glencore at the cost of forgoing a corresponding amount of the Community loan, especially as the grain to which the contracts relate is a homoge­ neous and undifferentiated good. The pur­ chasing republics could easily have obtained Moreover, according to the analysis carried it, though clearly with late delivery, from out by the Court of First Instance which led large competing trading companies on con­ to the dismissal of the actions for inadmissi­ tractual terms acceptable to the Commission. bility — for lack of direct concern on the part of Dreyfus, Continentale and Glencore — it was sufficient to find that Exportkhleb and Ukrimpex certainly retained, technically at least, the possibility of forgoing Commu­ nity financing and implementing the supply contracts in accordance with the price condi­ tions repudiated by the Commission.

In any case, moving from speculative consid­ Such an approach — which in fact has erations to the facts, it is evident from the already been rejected by the Court of Justice facts described in the contested judgments 65 in the Geotronics case — should also be that the Russian Federation and Ukraine did discarded, however. In my opinion, it repre­ not have direct access to such resources. 66

sents no more than a sterile exercise in legal Moreover, the Commission did not really formalism, for the reasons I shall now set deny that that was so. out.

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DREYFUS v COMMISSION

As a consequence, the following conclusion of Regulation No 1897/92, itself based on must be reached: the alleged option (but the Decision 91/658) and deprived Dreyfus, situation would be the same if one preferred Continentale and Glencore (whether to speak of obligation) for the Russian and wrongly or rightly is of no importance here) Ukrainian authorities to perform the con­ of any effective chance of performing the tracts on the agreed terms while forgoing sales contracts awarded to each of them. Community financing should be considered to be purely theoretical, just as in the Geotronics case it was held that the possibil­ ity for the Romanian authorities to decide to award the contract in question to Geotron­ ics, notwithstanding the Commission's refusal to grant it Community aid, was held to be theoretical.

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OPINION OF MR LA PERGOLA — CASES C-386/96 P, C-391/96 P, C-403/96 P AND C-404/96 P

For the reasons I have set out above, even that difference in circumstances cannot affect

67 — The Commission had argued before the Court of First Instance that in that case it was not the disputed measure but the subsequent letter from the Romanian Ministry of In the Geotronics case the issue hinged on Agriculture and Food Industry informing Geotronics that it would not conclude a contract with it that constituted the the very nature of the letter sent by the decision adversely affecting the applicant (sec Case T-185/94, cited above in footnote 28, paragraph 23), Commission to Geotronics, in other words 68 — See footnote 19 above and the related passage in the text. on whether it was possible to characterise 69 — Sec footnote 19 above and the related passage in the text. such an act as being capable of forming the 70 — See footnote 19 above.

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the admissibility of the actions brought by been capable of forming the subject-matter the appellants in the present cases. of an action for annulment by the three com­ panies.

Let us suppose, by way of hypothesis, that the formal addressees of the decisions of The rulings on the substance of the disputes 1 April 1993 and 12 July 1993 were the that are the subject of the cases before the appellants in the present proceedings, all Court will inevitably require findings of fact other circumstances remaining unchanged. In in order to assess the pleas originally made that case, in accordance with the principles by Dreyfus, Continentale and Glencore, established by the Court in the Geotronics which the Court of First Instance did not case, the decisions in question would have have occasion to consider in its interlocutory judgments of 24 September 1996. Moreover, Cases T-485/93 and T-491/93 regarding the actions for compensation for damages 71 — See, among many others, Case 222/83 Municipality of Dif- ferdange and Others v Commission [1984] ECR 2889, para­ brought by Dreyfus and Glencore under graph 9. Article 178 and the second paragraph of 72 — See, among many others, Joined Cases 789/79 and 790/79 Calpak and Società Emiliana Lavorazione frutta v Com- Article 215 of the Treaty arc still pending mission [1980] ECR 1949, paragraph 7, the order of 13 July 1988 in Case 160/88 R Fédération Européenne de la Santé before the Court of First Instance. For those Animale and Others v Council [1988] ECR 4121, paragraph reasons I propose that the cases be referred 26, and Casc T-47/95, cited in footnote 43 above, paragraph 39. back to the Court of First Instance.

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OPINION OF MR LA PERGOLA — CASES C-386/96 P, C-391/96 P, C-403/96 P AND C-404/96 P