T-186/96

MUTUAL AID ADMINISTRATION SERVICES v COMMISSION

O R D E R O F T H E C O U R T O F FIRST INSTANCE (Third Chamber) 3 October 1997 *

In Case T-l 86/96,

Mutual Aid Administration Services N V , a company incorporated under Belgian law, established in Antwerp (Belgium), represented by Jan Tritsmans, of the Antwerp Bar, with an address for service in Luxembourg at the Chambers of René Faltz, 6 Rue Heinrich Heine,

applicant,

v

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

5 According to Article 9, except in cases of force majeure, successful tenderers are to bear all risks to which the goods may be subject, and in particular their loss or deterioration, up to the appointed supply stage.

e Finally, Article 12(5) provides that in the event of a delay in the takeover or in the delivery of the goods by the transporter, a penalty of up to E C U 0.75 per tonne per day is to be imposed, that amount being increased to E C U 1.00 per tonne with effect from the 11th day.

7 By Regulation (EC) N o 228/96 of 7 February 1996 on the supply of fruit juice and fruit jams intended for the people of Armenia and Azerbaijan (OJ 1996 L 30, p. 18, hereinafter 'Regulation N o 228/96'), the Commission initiated a tendering pro- cedure relating to the supply of 1 000 tonnes of fruit juice, 1 000 tonnes of con- centrated fruit juice and 1 000 tonnes of fruit jams.

s Article 2 of that regulation provides that the supply is to include delivery of the goods, free on board, stowed on board ship, at a loading rate of at least 500 tonnes per day and that the packaging of the products must comply with the instructions in Annex I to the regulation.

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n Finally, the second subparagraph of Article 1(3) of Regulation N o 449/96 provides that, after the expiry of five days following the dates on which the products were to be made available at the loading ports, the successful tenderer for the transport is required to reimburse to the Commission the expenses incurred by the institution in covering all the costs referred to in Article 6(l)(e)(4) of Regulation N o 2009/95.

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MUTUAL AID ADMINISTRATION SERVICES v COMMISSION

Facts

1 4 O n 22 February 1996 the Commission decided to award the major part of the con- tract for the supply of the fruit juice and fruit jams under the tendering procedure initiated by Regulation N o 228/96 to the Italian undertaking Trento Frutta. A con- tract for 500 tonnes of fruit juice was awarded to the German company Loma.

is O n 21 March 1996 Mutual Aid Administration Services N V (hereinafter 'MAAS') submitted a tender in the context of the tendering procedure for the transport of the goods initiated by Regulation N o 449/96 in respect of all the lots of fruit juice, fruit jams and common wheat flour set out in Annex I to that regulation, in accordance with the provisions of Regulation N o 2009/95. MAAS's tender was based on estimated takeover and transport costs of E C U 225 133.53, or a unit price per tonne (gross) of E C U 54.47 for Beiuk-Kesik and E C U 54.86 for Airum.

20 It informed MAAS by fax of 12 April 1996 that it had awarded the contract for the supply of the flour to Grandi Molini Italiani and that the goods would be loaded in the port of Trieste. It added that the transport costs would be paid on the basis of the price per tonne (gross) indicated in the tender submitted by MAAS.

2i By fax of 29 April 1996 Trento Frutta, confirming a fax of 15 March 1996, informed MAAS that its products could not be loaded on more than two levels. MAAS replied by fax on the same day that it would take full responsibility for loading the pallets of fruit juice and jams on three levels. The following day, the Commission pointed out to MAAS that it had never agreed to the goods being stacked on three levels and that any decision to do so would be taken at the trans- porter's own risk and expense.

22 By fax of 2 May 1996 to the Commission, MAAS observed that, contrary to the information provided by the supplier, it did not even appear to be possible to load the cargo on two levels of pallets and, consequently, the transporter considered that it would be necessary to use a third vessel. The Commission replied that the problem should be resolved between MAAS and Trento Frutta, since Trento Frutta was liable for all the additional costs resulting from inaccurate information. O n 6 May 1996 the Commission wrote to MAAS and Trento Frutta as follows:

O n the basis of the ISI report, the Commission accepts that the fruit juice, to which the supply and transport contracts relate, cannot be stacked on two levels.

You are therefore requested to take all necessary measures to ensure that the goods are transported under the optimum conditions, that is to say without being stacked.

26 By fax of 12 June 1996 the Commission pointed out that, contrary to its instruc- tions, MAAS had stocked some of the goods from the trucks on two levels, and furthermore, had failed even to take the necessary precautions. The Commission noted that serious damage had resulted and expressed extremely broad reservations as to the possible financial consequences, pending calculation of the exact amount of the damage. Finally, it stressed that two ships would not have been sufficient and that a third ship would have been required even if it had been possible to load the goods on two levels.

27 It subsequently informed MAAS, by letter of 26 September 1996, that it would only pay BFR 191 970 of the outstanding balance of 10% (amounting to BFR 836 328) which it should still normally have received.

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ORDER OF 3. 10. 1997 — CASE T-186/96

28 First, the Commission considered that it could not meet the costs of chartering the third ship, on the ground that Trento Frutta had informed MAAS that the goods could be loaded on a maximum of two levels and, in those circumstances it would, in any event, have been necessary to charter a third vessel.

29 Second, it pointed out that, according to Article 9 of Regulation N o 2009/95, the value of quantities lost or deteriorated were to be reimbursed to it. However, in order to avoid any disagreement concerning the allocation of blame between pro- ducer and transporter, in the light of MAAS's allegations concerning the defective packaging of the goods, it calculated the quantities found to be damaged only in respect of the fruit juice and concentrated fruit juice which had been loaded on two levels in the trucks, since it had become apparent that it was not desirable to stack the pallets in that way.

MUTUAL AID ADMINISTRATION SERVICES v COMMISSION

— accordingly order the Commission to pay to the applicant BFR 644 385 (that is to say BFR 836 328 less the amount of BFR 191 970 already granted by the contested decision) and $41 000, together with interest calculated on the basis of the current statutory interest rate in Belgium of 7% per annum as from 1 September 1996;

— order the Commission to pay the costs.

33 The Commission contends that the Court should:

— dismiss the application;

— order the applicant to pay the costs of the proceedings.

36 O n the one hand, it is apparent from the facts that, by submitting a tender in the context of the tender procedure for the transport of the goods initiated by Regu- lation N o 449/96, MAAS declared that it had examined all the provisions of Regu- lations Nos 2009/95 and 449/96 and expressly undertook to comply with the con- ditions laid down therein.

37 Taking into account those conditions, it offered to transport, by appropriate means, all the consignments of goods referred to in Regulation N o 449/96 to their final destination and within the time-limits laid down in Annex I to that regu- lation, at a unit price per tonne (gross) of E C U 54.47 and E C U 54.86 respectively, giving a total price of E C U 225 133.53. Furthermore, pursuant to the second sub- paragraph of Article 1(2) of Regulation N o 449/96, it also assumed responsibility for informing itself from the manufacturers of the products on the technical details of the materials employed and their stowage possibilities, particularly for stacking. Finally, it stated in the section Observations or Remarks' in Annex 1 to its tender that it would dispatch experts to Poti, Batumi, Airum and Beiuk-Kesik to take all the necessary measures in order to ensure that the goods were delivered safely.

38 O n the other hand, when it awarded the contract for the transport of the goods to MAAS on the basis of the price tendered by that undertaking and the other ele- ments of its tender which, in the Commission's own view, provided the best assur- ances that the delivery would take place in accordance with the stipulated condi- tions, the Commission accepted the price proposed and rendered irrevocable the other undertakings entered into by the transporter.

43 The Court of Justice considered (at paragraph 12 of the judgment) that the respec- tive rights and obligations of the Commission and successful tenderers in the context of those supplies had not been determined entirely by Community regula- tions, on the ground that one essential element of the supply operation, namely the price, depended, as in this case, on the tenders put in by the tenderers and on the acceptance of the tenders by the Commission, as is apparent from 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). In those circumstances, it held (at paragraph 13) that the supplies in question had been implemented by contracts.

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44 It follows clearly from the foregoing that the application by MAAS for payment of the transport costs therefore constitutes an action for performance of a contract between the two parties to the dispute.

Jurisdiction of the Court of First Instance

45 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 Treaty, this Court has jurisdiction to rule at first instance on disputes of a contractual nature brought before it, as in the present case, by natural or legal persons only pursuant to an arbitration clause within the meaning of Article 181 of the Treaty. N o such arbitration clause exists in the present case.

49 The decision in which the Commission refused to pay MAAS the full transport costs claimed cannot on any view be regarded as severable from the Commission's obligation to pay the transporter the price representing the consideration for the transport operations performed.

so It follows that, with regard to the successful tenderer, the contested refusal to pay is not one of the unilateral decisions referred to by Article 189 of the Treaty, which the Commission must adopt under the conditions laid down by the Treaty.

si In respect of the successful tenderer, that refusal cannot therefore constitute an act against which an action for annulment may be brought in accordance with Article 173 of the Treaty. Accordingly, in so far as the present action relates to such a refusal, it is, in any event, manifestly inadmissible.

52 It follows from all the considerations set out above that the action should be dis- missed as manifestly inadmissible.

Costs

53 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 applicants must be ordered to bear all the costs.

2. The applicant shall bear the costs.

Luxembourg, 3 October 1997.

H. Jung B. Vesterdorf

Registrar President

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