C-161/97

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OPINION OF ADVOCATE GENERAL LÉGER delivered on 19 November 1998 *

Summary

I — Community legislation I - 2062

Exclusive right of the Agency to conclude supply contracts I - 2063

Procedure for balancing demand against supply I - 2064

2. The plea alleging an infringement of the time-limit laid down by Article 5 bis (f) of the Rules I - 2088

3. The plea alleging infringement of the rules on the division of powers I - 2089

4. The plea alleging breach of the obligation to state reasons I - 2091

5. The plea alleging misuse of the Agency's powers I - 2094

Β — CaseT-181/94 I -2096

The action for annulment I - 2096

2. The plea alleging breach of the principle of legal certainty and of the prin­ ciples of equal treatment and proportionality I - 2106

(a) Breach of the principle of legal certainty I - 2106

(b) Breach of the principle of equal treatment I - 2107

(c) Breach of the principle of proportionality I - 2108

3. The plea alleging breach of the rules on the division of powers I-2109

4. The plea alleging breach of the obligation to state reasons I-2110

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Community receive a regular and equitable decisions and appoint its Director-General supply of ores and nuclear fuels'. The fulfil­ and Deputy Director-General. ment of this obligation is the subject of Title II, Chapter 6 (Articles 52 to 76), which sets up a common system for the supply of ores, source materials and special fissile materials.

Any act, whether implied or expressed, per­ formed by the Agency in the exercise of its right of option or of its exclusive right to conclude supply contracts, may be referred 5. Article 52(1) of the Treaty provides that by the parties concerned to the Commission, '[the] supply of ores, source materials and which shall give a decision thereon within special fissile materials shall be ensured ... by one month.' means of a common supply policy on the principle of equal access to sources of sup­ ply'. For this purpose, Article 52(2)(a) pro­ hibits 'all practices designed to secure a privi­ leged position for certain users'. Exclusive right of the Agency to conclude supply contracts

6. In order to implement the abovementioned policy, Article 52(2)(b) provides for the estab­ lishment of the Agency, which is to have legal personality and financial autonomy. 2 8. To carry out its task in the matter of supply, the Agency has, in particular, 'an exclusive right to conclude contracts relating to the supply of ores, source materials and special fissile materials coming from inside the Community or from outside'. 3

7. Article 53 of the Treaty provides as follows:

9. Under Article 55 of the Treaty, the Member States are to communicate or cause to be 'The Agency shall be under the supervision communicated to the Agency all the informa­ of the Commission, which shall issue direc­ tion necessary to enable it to exercise its tives to it, possess a right of veto over its exclusive right to conclude supply contracts.

'Potential users shall periodically inform the If the Agency cannot meet in their entirety all Agency of the supplies they require, speci­ the orders received, it shall, subject to the fying the quantities, the physical and chemical provisions of Articles 68 and 69, share out nature, the place of origin, the intended use, the supplies proportionately among the orders delivery dates and price terms, which are to relating to each offer.

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Agency rules, which shall require approval 16. The Rules lay down simplified proce­ by the Commission, shall determine the dures for balancing demand against the supply manner in which demand is to be balanced of ores. against supply.'

13. The first paragraph of Article 61 of the 17. Accordingly the first paragraph of Article Treaty, which appears in Section II relating to 5 of the Rules provides: materials from inside the Community, states that 'the Agency shall meet all orders unless p r e v e n t e d f r o m d o i n g so b y legal o r material obstacles'.

'If, in respect of a specific product and where in particular the Agency takes the initiative, the Commission, having heard the Advisory Committee, finds that the situation on the 14. The second paragraph of Article 65 pro­ market shows a clear surplus of supply over vides that 'the Agency may decide on the demand, it may, by means of an appropriate geographical origin of supplies provided that directive, call upon the Agency to apply the conditions which are at least as favourable as simplified procedure ...' those specified in the order are thereby secured for the user'.

21. However, Article 5 bis of the Rules, as amended, provides:

6. price and terms of payment,

'(c) The supply contract shall include at least the following information: 7. duration of the contracts;

1. designation of the contracting parties,

(d) the contract shall, for the purposes of its conclusion, be submitted to the Agency for signature within 10 working days;

2. quantities of materials to be supplied,

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'(a) more secure conditions of supply and 2 In June 1993 it invited tenders for the reduced risks of sudden fluctuations in supply of natural uranium in the form of energy prices through: uranium hexafluoride (UF 6 ). O n 10 and 22 November 1993, it concluded a supply contract with the company which had made the most attractive offer, British Nuclear Fuels plc (hereinafter " B N F L " ) , established in the United Kingdom. Under that contract, 400 tonnes of nat­ ural uranium in the form of U F 6 were to be delivered by 31 March 1995 at the latest to an enrichment company estab­ lished within the Community. The pur­ chase price agreed was US $22 per kilo­ gram, excluding VAT. The contract was — geographical diversification of the Com­ silent as to the place of origin of the ura­ munity's external sources of supply'. nium to be supplied, but BNFL under­ took to inform KLE and the Euratom Supply Agency... of the country of origin on the occasion of each partial delivery at the latest. The contract stated that it was to take effect only with the agree­ ment of the Agency. II — Facts and procedure

3 Article 5 bis (d) of the Rules of the Supply Agency of 5 May 1960 ... pro­ vides that under a "simplified proce­ 27. In its judgment, the Court of First Instance dure" a supply contract is, for the pur­ found as follows: poses of its conclusion, to be submitted to the Agency for signature. Under Article 5 bis (f), the Agency then has ten working days within which to act, either by concluding or by refusing to con­ clude the contract.

7 O n 29 December 1993 KLE referred the matter to the Commission under the second paragraph of Article 53 of the Treaty, alleging that the Agency had failed to act. 6 By letter of 20 December 1993 the Agency informed the parties that its policy was to see to it that users in the [European Atomic Energy] Community (hereinafter "the Community") "[did] not become overdependent on any single source of supply beyond reasonable 8 O n 6 January 1994 it was notified of limits, and that the acquisition of nuclear Decision N o 1/94 of the Agency con­ materials from CIS Republics [took] place cerning the supply contract submitted at fair prices related to those of the on 29 November 1993. Pursuant to that market (i. e. reflecting cost of produc­ decision, the Agency signed the contract tion and compatible with prices of pro­ of 10 and 22 November 1993 between ducers in market economy countries)". KLE and BNFL with the addition of a The Agency stated that its policy of condition that the natural uranium to be diversification was aimed at confining supplied could not come directly or in­ the proportion of supplies from the CIS directly from the CIS. to 20 to 2 5 % of individual Community users' needs. It considered that the con­ tract submitted by KLE might make it too dependent on uranium from the CIS. It calculated that, taking into account total deliveries to KLE during the pre­ vious three years, KLE was entitled to acquire about 45 tonnes a year of natural 9 O n 10 January 1994 the Commission uranium of CIS origin. KLE had, how­ informed KLE's representatives that in ever, already contracted for quantities far its opinion the Agency's decision com­ exceeding the level of reasonable municated to KLE on 6 January had been dependency for several years. Moreover, taken within the time-limit laid down, the proposed prices did not reflect normal so that the reference to the Commission production costs and were not was now devoid of purpose.

12 With respect to the first procedure, con­ cerning the Agency's alleged failure to act, the Commission adopted on 4 Feb­ 15 O n 8 and 14 March 1994 KLE and BNFL ruary 1994 Decision 94/95/Euratom concluded a new contract for the supply of 400 tonnes of uranium in the form of relating to a procedure in application of U F 6at a price of US $27 per kilogram, the second paragraph of Article 53 of the subject to the condition that the uranium Euratom Treaty (OJ 1994 L 48, p. 45). It did not come directly or indirectly from rejected the requests made by KLE, the CIS. That contract was concluded by which were based on the claim that the the Agency on 30 March 1994.' Agency had not taken a decision within the time-limit and asked the Commis­ sion in particular to instruct the Agency to conclude the contract of 10 and 22 November 1993. The Commission con­ sidered that the Agency had not failed to act, since it had been entitled to com­ plete its documentation and the period 28. Those were the circumstances in which of ten working days had therefore not KLE brought proceedings in Case T-149/94 started to run until the date when the and Case T-181/94 for annulment of Com­ additional information requested was mission Decisions 94/95 and 94/285 respec­ received, namely 14 December 1993, and tively; in Case T-l 81/94, it also brought an had not expired until 6 January 1994, the order requiring the Community to pay the date on which Decision N o 1/94 was applicant damages of D M 3 511 279.30, with actually taken. interest at 6% per annum from 7 April 1994.

30. The first and second pleas question whether the Agency was entitled, first, to ask for supplementary information concerning, in 33. Therefore the Court concluded that, by this case, the origin of the source materials, not stating the origin of the uranium in the and, second, not to take a final decision until supply contract, even though it had been it had completed its documentation, that is, agreed between the parties at least implicitly, until it had in its possession the minimum the appellant was itself the cause of the Agen­ information required by Article 5 bis (c) of cy's administrative difficulties in coming to a the Rules. The appellant argued that it was decision. In those circumstances, the Court excessive to ask for supplementary informa­ found that the appellant was not entitled to tion and that the delay in taking a decision rely on Article 5 bis (c) of the Rules, which exceeded the time needed to attain the object provides for an expedited procedure in the of completing the documentation. According form of a period of ten working days within to the appellant, the arbitrary delay in taking decisions concerning the conclusion of the contracts infringed the principle of legal 11 — Paragraph 35 of the judgment. certainty. 12 — Paragraphs 36 and 37.

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which the Agency must act, for cases which to the Court, the decision clearly and unequivo­ present no problems. cally disclosed the reasoning followed. 4

34. O n the other hand, the Court considered 38. O n the fifth plea in law — alleging misuse that, in this particular case, the Agency was of powers by the Agency and the Commis­ entitled, before the expiry of the period pro­ sion which, according to the appellant, had vided for in Article 5 bis (f), to ask the par­ no discretion, but were under an obligation ties to provide the missing documentation by to conclude the contract submitted by the informing it of the origin of the materials to appellant — the Court found that the appel­ be supplied. lant had adduced no evidence at all that the Agency and the Commission had pursued an aim other than that of implementing the supply policy. 1 5

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annulment of Commission Decision 94/285, equal access to sources of supply laid down alleging infringement of Article 5 bis of the in Article 52(1) of the Treaty. The Court con­ Rules and of the provisions on supplies in sidered that this was clear from Article Chapter 6 of the Treaty, breach of the general 52(2)(b), which established that specialised principles of Community law, breach of the body expressly for that purpose and con­ rules on the division of powers, breach of the ferred on it, in principle, exclusive rights in obligation to state reasons, and misuse of order to ensure that Community users received powers. regular and equitable supplies of nuclear mate­ rials from the Community and from non- member countries. 16

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and nuclear policy are involved, the Agency ensuring that the importation of nuclear mate­ has a broad discretion when exercising its rials into the Community was effected at powers, so that review by the Court must in market-related prices. According to the Com­ any event be confined to identifying any mission, this principle had been recognised manifest error of assessment or misuse of by Article 14 of the Trade Agreement as 19 powers. applicable in relations between the Commu­ nity and the Soviet Union, or subsequently the CIS States.

47. The Court considered that the Agency could lawfully bar imports of nuclear mate­ 50. The Court found that Article 14 of the rials if those imports were liable to jeopardise Trade Agreement formed part of Community the achievement of the aims of the Treaty, in law and pointed out that, by virtue of Article particular by their effect on sources of supply. 64 of the Treaty, the Agency had to act, where According to the Court, such a risk could be appropriate, within the framework of agree­ regarded as a legal obstacle, within the meaning ments between the Community and a third of the first paragraph of Article 61 of the State. Treaty, to meeting an order. 2 0

51. After examining the available data on prices to determine whether Article 14 of the 48. As the possibility could not be ruled out Trade Agreement had been applied correctly that, when the Commission adopted Decision by the Agency and the Commission, the 94/285, a regular and equitable supply in Court found that the contract did not comply accordance with Article 2(d) of the Treaty with the rule that supplies must take place at could be jeopardised, the Court took the view market-related prices because the contract had that a first legal obstacle actually existed. 2 1 been concluded at a price which was even lower than the average spot market price. 2 2

53. With regard to the third obstacle to con­ 56. Consequently the Court dismissed the cluding the contract, allegedly deriving from first and second limbs of the first plea as the obligation to ensure equal access to sources unfounded. of supply and to prevent one user from being given a privileged position in relation to com­ petitors, the Court considered that, if imports were to be limited, the application of a per­ missible threshold of dependence — fixed, by reference to the state of the market, at a maximum percentage of individual users' con­ 57. By the third limb of the first plea, alleging sumption — was justified in order to guar­ infringement of the aims of Article 1 of the antee equal access to sources of supply in Treaty, the appellant claimed that the Com­ accordance with Article 52(1) of the Treaty. 2 3 mission and the Agency had been guided only by the interests of producers and had not taken the interests of users into account. The appellants also considered that the Agency's policy gave only feeble protection to pro­ ducers within the Community, who cover only 20% of the Community's uranium requirements, and benefits producers in cer­ tain non-member countries. 54. Finding that the appellant had already purchased uranium from the CIS in quanti­ ties exceeding the limit fixed by the Agency within its broad discretion, the Court took the view that the Commission was justified in finding that there was a legal obstacle within the meaning of the first paragraph of Article 58. The Court of First Instance dismissed this 61 of the Treaty. 2 4 complaint on the grounds that the Agency was seeking to ensure reliability of supply and to guarantee continuity of supplies to Community users and that it was in the interest of the Community nuclear industry that a particular source of supply should not become too large in relation to alternative sources. The Court added that it was likewise in the interest of the Community as a whole 55. The Court considered that the Agency and consistent with the aim of developing did not commit an error of law or a manifest trade with other countries that imports should error of assessment by refusing to conclude take place at market-related prices, as shown unconditionally the supply contract in ques­ in particular by Article 14 of the Trade Agree­ tion and by adding to the contract a condi­ ment. Therefore, according to the Court, tion that the uranium was not to come from Decision 94/285 met the requirements of the the CIS. 2 5 supply policy and did not conflict with the task of the Community. 2 6

60. The Court dismissed this complaint. It took the view that the freedom of an under­ taking to obtain supplies from a supplier of its choice established in another Member State 53. Regarding the principle of equal treat­ had to be exercised within the limits laid ment, the Court observed that the Agency down by the Treaty, in particular in such a applied a threshold of permissible dependence way as to ensure that the reliability of supply in order to ensure equal access to sources of was not jeopardised. In the present case, supply for undertakings established in the according to the Court, the appellant's con­ Community and that such an approach was tract came up against certain legal obstacles ¡ustified on the basis of Article 52(1) of the which, under the first paragraph of Article 61 Treaty. The Court added that the Agency and of the Treaty, restrict that freedom. 2 7 the Commission could not be required to take account of particular circumstances in dif- ferent Member States. The Court also con- sidered that the appellant had not shown that there were cases in which the Agency and the Commission had failed to object to an 61. In support of its second plea, the appel­ infringement of Article 5 bis of the Rules. 29 lant argued that the principle of legal cer­ tainty had been infringed in so far as the Agency's conduct lacked transparency: that t h e p r i n c i p l e of equal t r e a t m e n t h a d been infringed in so far as the Agency had not taken account of the small role played by 64. With regard to the complaint concerning nuclear energy in electricity production in infringement of the principle of proportion- Germany; and, finally, that the principle of ality, the Court stated that it must be dis- proportionality had been infringed in so far missed because the Agency, in view of the as the aim of diversification could have been aims of its supply policy, had to block imports achieved equally well on the basis of the from the CIS at non-market-related prices. second paragraph of Article 65 of the Treaty, The Court added that the condition for or Articles 70 and 72, which relate to support approval of the contract, namely that the for prospecting programmes and to the materials were not to come from the CIS, building-up of commercial and emergency could not be disproportionate for the reasons stocks.

30 — Paragraph 135. 32 — Paragraph 146. 31 — Paragraph 140. 33 — Paragraph 150.

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71. The Court therefore dismissed the action 2. annul the decision of 4 February 1994 for annulment in its entirety. of the Commission of the European Communities;

The action for damages

3. annul the decision of 21 February 1994 of the Commission of the European Communities; 3 6 72. As the Court found that the alleged con­ duct of the Agency and the Commission's refusal to accede to the appellant's requests were not vitiated by any irregularity, it dis­ missed the claim for damages as unfounded. 3 4

74. The Commission contends that the Court V — Examination of the pleas in support of should: the appeal

' 1 . dismiss the appeal; 78. The Commission considers that the appeal is clearly inadmissible and asks the Court to dismiss it pursuant to Article 119 of the Rules of Procedure on the grounds that it merely reproduces the application at first instance and does not contain pleas in law which are specific and identifiable. Therefore the appeal 2. order the appellant to pay the costs.' is not in conformity with Article 52 of the EAEC Statute of the Court of Justice and Article 112(l)(c) of the Rules of Procedure of the Court.

75. In its reply, the appellant asks the Court to order production of the Council's negoti­ ating directives to the Commission and other documents concerning the negotiations with 79. The appellant maintains that, on the con­ the Russian Federation on the partnership and trary, the conditions of Article 51 of the EC cooperation agreement. Statute of the Court of Justice 3 7 and Article 112(l)(c) of its Rules of Procedure are ful­ filled since the appeal is based on pleas alleging irregularities in the proceedings before the Court of First Instance which jeopardise the appellant's interests, and on several breaches of Community law by that Court. 76. According to the appellant, these docu­ ments confirm that the opinion that the CIS as a whole should be regarded as a single source of supply is contrary to the Commis­ sion's practice.

80. In the present case, the appellant submits that it is not merely requesting a re­ examination; nor is it reproducing its pre­ vious pleas word for word. It states that the appeal follows faithfully, even with respect to 77. The appellant adds that otherwise the Court should 'include in the file the proce­ dural documents of the Agency and the defen­ dant concerning the present proceedings'. 37 — No doubt this should read 'Article 52 of the EAEC Statute'.

81. The appellant's approach raises a serious question concerning the application of Article 119 of the Rules of Procedure. It is clear that 84. It should be observed that, contrary to the structure used by the appellant in setting what may appear from the first part of the out the appeal is modelled on that of the Court's usual reasoning justifying the dis­ judgment of the Court of First Instance, which missal of pleas and arguments repeating those repeats each of the pleas put forward at first submitted at first instance, it is not sufficient instance by the appellant itself. to reword them in order to escape the objec­ tion of inadmissibility. As the second part of the reasoning clearly indicates, in order for the admissibility of a plea or argument to be ' sufficiently affected, it is enough if the issues already determined by the Court of First Instance, regardless of whether they are framed in identical terms, 4 1 are presented once again in order to obtain the judgment of the Court 82. However, Article 112(l)(c) of the Rules of Justice under the same conditions and in of Procedure states that an appeal must con­ tain the pleas in law and legal arguments relied on. The Court of Justice has consistently held 39 — This case-law may be applied to Article 50 of the Statute that it follows from this that an appeal must known as the Statute of the Court of Justice of the Euro­ pean Atomic Energy Community, as the two provisions, indicate precisely the contested elements of and therefore the conditions which they set out for the admissibility of the appeals, are entirely identical. the judgment which the appellant seeks to 40 — See the judgment in Deere ν Commission, cited above, have set aside, and also the legal arguments paragraph 20. specifically advanced in support of the 41 — In the judgment in Case C-355/95 Ρ TWD ν Commission [1997] ECR I-2549, paragraph 33, the Court of Justice dis­ appeal. 3 8 missed as inadmissible a plea whereby an appellant merely repeated arguments already put by it to the Court of First Instance and which the latter had rejected, but the Court of Justice did not state that inadmissibility was subject to the condition that the arguments which were put forward a second time, but before the Court of Justice, had to repro­ 38 — See the judgment in Case C-7/95 Ρ Deere ν Commission duce word for word those submitted to the Court of First [1998] ECR I-3111, paragraphs 18 and 19. Instance.

90. The appellant contends in essence that, contrary to the finding of the Court of First Instance, Article 5 bis (f) does not empower 88. As I have said, the appellant has not for­ the Agency to ask for supplementary infor­ mally set out, as is the custom, each of the mation or to extend the ten-day period pre­ pleas raised against the judgment of the Court scribed by that provision, which uncondition­ of First Instance. The appellant has presented ally requires the Agency to conclude or refuse them directly by placing them under the head­ to conclude the contract within that period.

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91. This argument raises the issue of the exact living of its citizens. The lack of alternative scope of the Agency's powers when, having direct sources of supply would expose the received a supply contract for the purpose of country to the serious consequences of sudden concluding it, it is not aware of the source of default on the part of one of its suppliers, the supplies in question. particularly since given the limited number of suppliers, this would affect a substantial pro­ portion of its supplies. 4 3 Therefore diversity of supply is a condition of a regular supply and of the resulting reliability for the Community.

92. The text of Article 5 bis (f) envisages only one alternative because the Agency has the choice, within the legal period, of concluding or refusing to conclude the contract.

95. Furthermore, the same reasons led the Council to state expressly, in the Resolution of 16 September 1986, cited above, that the energy policy of the Community and the Member States must endeavour to ensure 93. However, the Agency's powers must be more secure conditions of supply and reduced determined in the light both of its own tasks risks of sudden fluctuations in energy prices and the objectives pursued by the Treaty and through geographical diversification of the by the relevant secondary legislation. Community's external sources of supply. 4 4

supply to be ascertained not only in order to origin of supplies, provided that conditions ensure a variety of sources, but also to assess which are at least as favourable as those speci­ the risks of a breakdown in supply caused by fied in the order are thereby secured for the the political or economic situation of a par­ user. ticular State or group of supplier States. The need for exact information on sources of supply must therefore, it seems to me, influ­ ence the interpretation to be given to the pro­ visions laying down the Agency's powers. 100. I should add that, under Article 64, the Agency is to exercise its exclusive right 'act­ ing where appropriate within the framework of agreements concluded between the Com­ munity and a third State or an international organisation'. In other words, if the Commu­ nity is bound by international agreements 97. The provisions of the Treaty bear witness which may affect its supply of nuclear source to this importance. Article 60, which applies materials, the Agency must comply with those to users of source materials from within and agreements, which means that it cannot con­ outside the Community, provides that they clude a supply contract without having been must inform the Agency periodically of the informed beforehand of the source of the place of origin of supplies. supplies referred to in the contract. This means that, without that information, it cannot ascer­ tain whether the contractual relationship is covered by the rules for the agreement in question and cannot ensure that they are cor­ rectly applied.

104. For the reasons just given, I can only endorse the reasoning of the Court of First Instance when it observes that 'the geograph­ ical origin of the materials to be supplied is thus one of the principal elements of a supply contract which have to be communicated to 107. However, a difficulty appears to arise the Agency under Article 5 bis (f) of the where, as in this case, the information Rules', because it is essential for the Agency requested is given within the time-limit, but to know the geographical origin 'in order to the Agency gives its decision after the dead­ ensure reliability of supply — the aim of the line. supply policy pursued ...'. 4 7

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the facts. The Court of First Instance has the contract had previously determined the exclusive jurisdiction, firstly, to establish the place of origin of the uranium and were facts except where the substantive inaccuracy therefore in a position to state this in the con­ of its findings is apparent from the documents tract itself. submitted to it and, second, to assess those facts. When the Court of First Instance has established or assessed the facts, the Court of Justice has jurisdiction under Article 168a of the E C Treaty and the corresponding provi­ sions of the ECSC and EAEC Treaties to review the legal characterisation of those facts 118. In doing so, the Court made an assess­ at first instance and the legal conclusions it ment of the evidence before it which is not has drawn from them. open to review.

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122. If it is found that the ten-day period 125. In the light of that interpretation, I must be observed, come what may, this would believe that the Court of First Instance was amount to allowing the supplier not to inform justified in finding that the ten-day period the Agency of the origin of the uranium, albeit began to run on 14 December 1993, the date at the risk of an outright refusal to conclude when the Agency received the information it the contract if the Agency took the view that 52 had requested. Contrary to the appellant's it could not make a decision without knowing argument, the length of the period in ques­ the origin of the source materials. In the same tion cannot be regarded as disproportionate, way, strict observance of the time-limit may as the time which had already elapsed cannot lead to the Agency to make a decision before be taken into account because the documen­ obtaining details of the origin, even though tation was not complete. they could be provided at the very last moment. Here again, the Agency would be tempted, as a precaution, to refuse to con­ clude the contract, which appears unreason­ able where the origin of the materials does not justify that position. 126. The appellant denies that it was itself the cause of the Agency's administrative difficul­ ties in coming to a decision. It also claims that there is no foundation for the statement by the Court of First Instance that the accel­ erated procedure of Article 5 bis (f) of the Rules applies only to cases which present no 123. Alternatively, it could be assumed that problems. time cannot start to run until the Agency has all the information necessary to exercise its exclusive right to conclude contracts.

2. The plea alleging an infringement of the time-limit laid down by Article 5 bis (f) of the Rules 134. As those persons are subject to the same regulations as Commission staff, the public holidays to which they are entitled are those fixed by annual communication published in the Official Journal of the European Commu­ nities. 130. The appellant argues that, in any case, the legal time-limit was exceeded when the Agency took Decision 1/94 on 6 January 1994, and also disputes the method of calcu­ lating the time-limit which, it maintains, expired on 28 December 1993. It adds that, 135. It follows from the foregoing and from even assuming that the period expired on 6 the Commission communication on public January, the Agency's decision dated the same holidays for 1993 5 3 that the period from day is irregular because it was sent by regis­ Thursday 23 December to Friday 31 tered letter on 7 January. December 1993 was a public holiday, which means that seven days must be deducted from the number of days between 15 December 1993, the day following the Agency's receipt of the information requested, and 6 January 1994, the date of notification of Decision 1/94.

131. Under Article 5 bis (f) of the Rules, the Agency must act within ten working days of the date of receipt of the contract.

136. Furthermore, the weekends, totalling six days, 5 4 falling in the period in question are not taken into account when calculating the time-limit.

132. It is common ground that 'working days' do not include Saturdays, Sundays and public 53 — Communication 93/C 2/07 (OJ 1993 C 2, p. 8). holidays, which therefore do not count in the 54 — Saturday 18 and Sunday 19 December 1993, Saturday 25 and Sunday 26 December 1993 and Saturday 1 and Sunday 2 computation of the time-limit. January 1994.

143. This plea must be declared inadmissible. 3. The plea alleging infringement of the rules on the division of powers

144. In paragraphs 42 and 43 of the judgment 141. The appellant considers that the Agen­ the Court of First Instance found that the cy's power to conclude supply contracts is appellant had not pursued its third plea in not discretionary and does not authorise it to law — alleging breach of the rules on the division of powers — and concluded that there was no need to rule on whether the plea 55 — Paragraph 40. was well-founded.

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147. As I have already said, 5 6 the Court of 150. Therefore the criticism of the report for First Instance correctly interpreted the rel­ the hearing, which is only one of the docu­ evant provision when it stated its finding on ments available in the file, cannot be accepted. the application of the legal time-limit by the Although the appellant observes that it sub­ Agency. It also considered that the period in mitted observations on the report by letter of question was reasonable and, in particular, 13 September 1996 to request that it be recti­ did not breach the principle of legal cer­ fied and to state certain objections concerning tainty. 5 7 There is nothing in the stated rea­ 'turns of phrase which may be misleading and soning to suggest that the Court reached its certain assessments [which will be mentioned decision without the judges having taken below], so necessary to the oral proceedings', account of all the facts, pleas and submissions these observations do not refer to shortcom­ put forward by the parties. ings arising from the alleged incompleteness of the report on which, furthermore, the appellant would not have been able to com­ 56 — See paragraph 124 et seq. of this opinion. ment in the course of the hearing before the 57 — Paragraph 40 of the judgment. Court of First Instance.

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151. Finally, it must be observed that, when 154. The appellant adds that in Decision 94/95 the Court of First Instance finds, as here, that the Commission also disregarded its obliga­ an applicant has not pursued one of the pleas tion to state reasons by dealing in general in support of its application, it cannot be terms with the question of the origin of the required to remedy the applicant's omission source materials, whereas it ought to have by examining of its own motion the com­ referred to the concepts of 'country of origin' plaints which the applicant was supposed to and 'sources of supply'. put forward.

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157. It is clear from the abovementioned pro­ of First Instance; [i]n an appeal the Court's visions of the Treaty and the EAEC Statute jurisdiction is thus confined to examining the of the Court of Justice that not only is an assessment by the Court of First Instance of 60 appeal to be limited to points of law, but it the pleas argued before it'. may be based only on grounds bearing on the judgment of the Court of First Instance, that is to say, lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant or infringement of Community law 161. Some of these complaints were never by the Court of First Instance. raised by the appellant at first instance, and the Court of First Instance therefore legiti­ mately confined the grounds of the judgment to the pleas which were raised.

60 — See the judgment in Deere ν Commission, cited above, 59 — Paragraph 114 of this opinion. paragraph 61 et seq.

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lodged at the Registry of the Court of Justice 167. The Court does not mention this point on 14 September 1998, for access to Council in the summary of the parties' arguments in documents cannot be granted. The request is paragraph 44 and therefore did not reply to specifically made for access to additional evi­ it in its findings in paragraph 46 et seq. of the dence which, as it was not examined at first judgment. instance, cannot be led before the Court of Justice on an appeal. If the Court of Justice has no jurisdiction in principle to examine evidence accepted by the Court of First Instance in support of the facts put before it, the Court of Justice quite certainly has no jurisdiction to take cognisance of evidence 168. Consequently this complaint is valid. It produced while the case was pending. must therefore be found that the judgment does not state grounds in this respect and I propose that the present Court annul the judgment on this point, in so far as no ruling was given on the limb of the plea alleging that the Agency failed to state reasons.

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171. Clearly, therefore, the Agency must state 174. It should be added that the implicit reasons only where the decision referred to decision to make the starting point for the the Commission is a decision not to conclude legal time-limit subject to the possession of a contract, which is not the case here as none complete documentation cannot be treated as of the Agency's acts to which the appellant the later decision to refuse to conclude a con­ refers has such refusal as its subject-matter. tract for supplies from the CIS.

175. Consequently the second limb of the 172. With regard to the letter of 10 December plea must be held to be unfounded. 1993, in which the Agency asked the appel­ lant and BNFL, within the legal time-limit, for information on the origin of the uranium, the very subject-matter of the request clearly shows that the Agency attached great impor­ tance to obtaining information on the origin of the supplies before concluding the con­ 5. The plea alleging misuse of the Agency's tract, and no further explanation by the powers Agency on this point is necessary. There was nothing at that stage to indicate that a refusal was contemplated.

question, the Agency was seeking to protect 181. The appellant's assertion that the Agency, Western producers of uranium, thus pursuing in exceeding the scope of its powers, misused a policy other than that for which it was given them must be rejected. That question, which its powers. was considered in relation to the first plea examined in this Opinion, has no bearing upon the plea alleging misuse of powers which, as the Court of First Instance cor­ rectly observed, refers to cases where a Com­ munity institution exercises its powers for a purpose other than those for which its powers 178. The Court of First Instance began by under the Treaty were conferred on it, not to observing that 'it has been consistently held cases where those powers are exceeded. that a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated' and concluded that the appellant 'has adduced no evidence at all that the Agency and the Commission pursued an aim other than that of implementing the supply policy'. 6 2

182. The arguments alleging a break by the Agency with its previous policy and con­ cerning the protection of Western producers do not show that the Court of First Instance misconstrued the evidence. The appellant does 179. For the reasons given above, 6 3 the Court not attempt to prove any such distortion of Justice has no jurisdiction to give a ruling because the complaints in question do not on the value of the evidence put before the relate to the same subject-matter as the plea Court of First Instance, save where that evi­ which the Court of First Instance addressed dence has been fundamentally misconstrued. in its judgment.

188. Like the Court in paragraph 88 of the 184. It seems to me that two limbs can be judgment, the appellant and the Commission distinguished in the appellant's complaints consider that the first paragraph of Article 61 and arguments in support of this plea. of the Treaty, under which, it should be remembered, the Agency must meet all orders unless prevented from doing so by legal or material obstacles, applies to the present case.

(a) The first limb, alleging disregard of the scope of the Agency's powers

190. The same does not apply to Article 61 and its scope is therefore manifestly limited to products from the Community, so that any reference to it in relation to a dispute con­ cerning imported products seems to me to be seeking to have Article 61 applied wrongly.

194. Consequently the grounds on which the Agency may refuse to conclude a contract are the same as those which application of Article 61 would lead to being described as legal obstacles, so that the reasoning of the Court of First Instance in relation to that provision cannot be affected by the limits to its scope.

191. However, the argument as to the legal basis of the Agency's acts is largely formal in so far as its acts are subject to requirements which, from our viewpoint, are comparable with those of Article 61. The Agency must meet orders placed by users, while ensuring that certain limits are not exceeded.

195. Before examining the three grounds on which the Agency justifies the condition relating to origin laid down in Decision 1/94, I must turn again to the complaint that the Agency has no discretion with regard to the supply policy, and then to the argument that it has no power to impose a condition of origin. 192. That obligation and the associated limits, constituted by the Agency's power to oppose the conclusion of certain contracts, arise from the Treaty. 67 — See paragraph 94 of this opinion.

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70 — In the third paragraph of point 20 of Decision 94/285 the Commission stated as follows: 'the fact that the Agency 68 — Articles 2(d) and 3(1) of the Treaty. allows producers and users themselves to draw up contracts 69 — Article 52(2)(a) of the Treaty prohibits 'all practices designed more easily and directly under a simplified procedure under to secure a privileged position for certain users'. The last the sixth paragraph or Article 60 of the Treaty, does not paragraph of Article 52(2) prohibits the Agency from dis­ mean that the Agency loses these powers conferred on it by criminating 'in any way between users on grounds of the use the Treaty'. which they intend to make of the supplies requested'. 71 — Paragraph 90 of the judgment.

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202. However, the breadth of that discretion policy in breach of the rules concerning the must not be overestimated nor must it be for­ powers conferred on Community institutions gotten that it derives its legitimacy from the by the Treaty. relationship between the Agency and the Commission.

205. Consequently the appellant cannot claim 208. Consequently the argument that the that the Agency has unlawfully arrogated to Agency plays too large a part in determining itself power to determine the common supply the common supply policy must be dismissed.

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209. The appellant claims that the Agency ucts would not come from the CIS, but has no right to alter the contract by adding refusing to do so otherwise. Therefore the conditions to it, contrary to the findings of alternative laid down by Article 5 bis was the Court of First Instance on this point. observed.

212. The appellant questions the existence of 210. Article 5 bis provides that the Agency the obstacles referred to by the Commission must act either by concluding or refusing to and found to exist by the Court of First conclude the contract. However, as I have Instance. said, I do not think it is consistent with the objectives of the Treaty to limit the Agency's decision-making power where it is unaware of the source of the supplies or where, as in the present case, it has legitimate reasons for believing that the origin of the products may imperil the reliability of supplies to the Member States of the Community. 7 2 213. The reasons for not meeting the order are, let me repeat, the need for diversification of external sources of supply, the level of prices stemming from the Trade Agreement, and the obligation to ensure equal access to resources.

220. It submits that it is for the Community institutions, not the Agency, to establish the permissible degree of dependence of the Com­ 216. With regard to the appraisal of complex munity in relation to supplies from the CIS. economic situations, the Agency, subject to the supervision of the Commission, has a broad discretion, which the Commission also has in the matter of common commercial policy. 7 4 221. O n this point, before dealing with the appellant's further arguments, I refer to my discussion of the powers conferred by the Treaty upon the Agency in relation to the common supply policy, and I repeat that this argument must be rejected. 7 6

217. Therefore the Court of First Instance was correct in stating that judicial review of such an appraisal must be limited to verifying whether the relevant procedural rules were complied with, whether the facts on which the choice was based were accurately stated 222. The appellant goes on to point out that and whether there was a manifest error of the Commission referred to the existing pro­ appraisal or a misuse of powers. 75 duction capacity of the CIS States, which was said to represent some 2 5 % . However, according to the appellant, the Commission said nothing regarding long-term production 74 — See, for example, the judgments in Case 260/84 Minebea ν Council [1987] ECR 1975, paragraph 28, and Case C-156/87 Gestetner Holdings ν Council and Commission [1990] ECR I-781, paragraph 63. 75 — Paragraph 90. 76 — See paragraph 195 et seq. of this opinion.

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226. The appellant also observes that, at the beginning of the next century, production capacity would be about 90% of demand. 224. In this connection, the appellant con­ Therefore it could not be said, as the Court tends that the Commission relied on produc­ of First Instance stated, that there would be a tion capacities only, without taking account 'structural deficiency' for such a short period. of the fall in prices, particularly on spot mar­ In reality, Community production had a 'defi­ kets, or of the existence of large stocks, which ciency structure' because Community ura­ explained the volume of materials available nium deposits are very small. A policy of from the CIS. However, according to the diversification, however skilful it might be, appellant, it could be foreseen that these stocks could not alter this because, by virtue of would be used up within a few years, regard­ natural laws, the distribution of uranium less of the uranium deposits and production deposits throughout the world was not gov­ capacity of the CIS. Since, according to the erned by the Agency's 'supply policy'. Commission, the production of the CIS States According to the appellant, this explains why accounted for approximately 2 5 % and that the Court of Justice dismissed E N U ' s

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application in the case of ENU ν Commis­ 229. The appellant adds that, in free-market sion. economies, it is inconceivable that an under­ taking should be punished merely because, after assessing market trends more accurately than its competitors, it uses them as a reason for refusing to conclude long-term contracts.

228. There is nothing in the legal system of 231. The appellant's arguments show clearly the Treaty to justify an obligation, on the part that, in essence, it seeks to dispute the facts of supply undertakings, to cover most of their as found by the Court of First Instance and needs by means of long-term contracts and to question its assessment, which cannot be not on the spot market. The period of validity reviewed, of both the facts and the evidence of supply contracts between the parties was a put before it. However, the appellant is not 78 matter for them alone, even though the Agency permitted to do this. Examination by the had exclusive power to conclude or refuse to Court of Justice of each of the appellant's conclude the contract. The opinion that the complaints, most of which are of a purely appellant's supplies on the spot market factual nature, would amount to accepting infringed the principle of equal access to that the Court has jurisdiction, in the context resources or indicated a privileged position of an appeal, to examine a complex factual within the meaning of Article 52(2)(a) of the situation, contrary to the provisions of the Treaty was mistaken in law. The judgment Treaty and the EAEC Statute of the Court of should be set aside on this ground also. Justice.

77 — Case C-357/95 Ρ [1997] ECR I-1329. 78 — See paragraph 114 et seq. of this opinion.

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232. I should add that, with a very few excep­ nothing to establish a connection between the tions, the appellant's submissions in no way alleged irregularity and the provisions to which indicate, and in any case not precisely, the the appellant refers. contested elements of the judgment which the appellant seeks to have set aside, but the appellant has an obligation to indicate these under the Rules of Procedure of the Court of 79 Justice, as interpreted by settled case-law. 236. I conclude therefore that the arguments seeking to cast doubt on the existence of an obstacle relating to the policy of diversifica­ tion of sources of supply are inadmissible.

80 — See the order in Case C-137/95 P, SPO and Others ν Com­ 79 — See paragraph 82 et seq. of this Opinion. mission [1996] ECR I-1611, paragraph 47 et seq..

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the contract and found valid by the Court of 242. I have already said why it seems to me First Instance cannot be called into question that the principle of a regular supply for all for Decision 94/285 to be deemed lawful in Community users laid down by Article 2(d) that respect. The grounds of the judgment of the Treaty depends on diversification of 81 examining the contract are sufficient to justify the sources of supply. Contrary to what the the dismissal of the appeal on this point. appellant says, such diversification must there­ fore be deemed an independent aim of the Treaty, because without it the principle may be rendered meaningless.

(b) The second limb, alleging infringement of 243. Moreover, the appellant does not specify the aims of Articles 1 and 2 of the Treaty the legal basis for its statement that the limits on the freedom of supply laid down by the Treaty are not justified.

240. The appellant contends that the Court 244. Finally, the same observation applies to of First Instance misconstrued the aims of the complaint concerning the definition of Articles 1 and 2 of the Treaty in finding that sources of supply. N o legal grounds are it was in the interest of the Community adduced in support of the argument that the nuclear industry that a particular source of term is strictly limited to States, and excludes supply, such as the CIS as a whole, should a group of States or a particular part of the not become too important in relation to alter­ world. O n the contrary, the appellant sets out native sources. a number of factual submissions on this point, thus revealing its intention of disputing the assessment by the Court of First Instance.

diversification of supply, it would be possible has ceased to exist. The appellant considers for several States to be considered together that it cannot be bound by findings made in for assessing the risk to the Community 1992 by a working party of experts set up in arising from a large increase in the supply the framework of the Advisory Committee contracts concluded with them. Under these sitting in camera, whose conclusions were circumstances, a single limit of permissible based entirely on Western production costs, dependence may perfectly well be applied to which were not the same thing as market- a group of sovereign States. related prices. N o r could it have been fore­ seen, according to the appellant, that the Agency would infer, from the finding in its annual report for 1992 that imports of natural uranium from the CIS represented approxi­ mately 2 5 % of net Community needs, that the 'existing long-term production capacity' of the CIS and its share of world production 2. The plea alleging breach of the principle of were also 25%. Finally, the appellant claims legal certainty and of the principles of equal that it could not have anticipated that the treatment and proportionality Agency and the Commission would not observe the international agreements with the CIS States under which each of the latter was to be deemed a particular source of supply. As the Agency had previously concluded con­ tracts with the appellant and other users at prices which were not 'market-related', there (a) Breach of the principle of legal certainty was nothing to indicate that the Agency would evolve from an internal document a com­ pletely different 'common supply policy' which it had no power to decide on under Article 52(1).

254. According to the appellant, the last para­ 251. Citing the Agency's annual report for graph of Article 52(2) of the Treaty requires 1992 with regard to the high level of imports the Agency not to discriminate between users of natural uranium from the CIS and the on grounds of the use which they intend to contracts concluded for future deliveries, and make of the supplies requested. The applica­ with regard to the price levels, 'which were tion by the Agency of its internal assessment unrelated to production costs in the West', criterion causes it to allocate to large State and also with regard to the opinion of the undertakings the same quantities of uranium Commission and the Agency that corrective from the CIS as to small, legally independent, measures were justified, the Court of First private undertakings, whereas the State under­ Instance was entided to conclude that 'hav­ takings are much better able to draw up their ing regard to the existence of easily accessible plans, and for a longer term, than small under­ sources of information which a reasonably takings such as the appellant. This is said to diligent trader in this very particular and be discriminatory treatment. clearly identified sector must be taken to know, it cannot be said that there was a lack of transparency'. 8 3

82 — Paragraph 125 of the judgment 255. The appellant merely asserts that the 83 — Paragraphs 126 and 127. Court of First Instance did not examine its

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260. However, the Court of First Instance and that there were no obstacles to perfor­ gave a clear and adequate decision in finding mance of the contract, I refer to my earlier — correctly — that application of the provi­ observations on these points. sions of the Treaty referred to by the appel­ lant would have been of no assistance in that the Agency, 'considering the aims of its supply policy, had to block imports from the CIS at non-market-related prices'. 8 5

264. Consequently the appellant's plea must be dismissed.

261. Above all, the Court of First Instance gave sufficient grounds for finding that the condition of origin imposed by the Agency was lawful with regard to the principle of 3. The plea alleging breach of the rules on proportionality, by referring to the other the division of powers grounds of the judgment relating to the need for the Agency to be able bar uranium imports if they might jeopardise the geographical diversification of sources of supply.

265. The appellant contends that the Court of First Instance disregarded the distribution of powers laid down by the Treaty by finding that the Agency had the right to determine 262. Therefore the aim of the contested mea­ the common supply policy, whereas it has sure is expressly mentioned and the judgment only quasi-notarial functions and powers of a shows clearly that continued imports of purely commercial nature. nuclear materials from the CIS would have been likely to jeopardise fulfilment of the requirement of regular supplies. 8 6

270. First of all, the limb of the plea alleging irregularity in the Commission's reasoning concerning the production capacity of the CIS States must be dismissed. This part of the 267. The appellant claims that the Court of appellant's argument is, as the Commission First Instance did not fulfil its obligation to rightly points out, directed against the latter's state reasons because it failed to examine the decision and does not call the judgment into complaint that the Commission did not show question. Furthermore, the appellant brings a structural relationship between the Agen­ its argument to bear on purely factual aspects cy's powers and the Treaty and did not state of the matter and omits to put forward pleas why the appellant would become dependent in law. on supplies from the CIS or in what way the purchase price agreed in the contract did not conform to market conditions.

268. The appellant adds that the Commis­ 271. Secondly, with regard to the alleged sion's reasoning is not consistent with taking failure of the Court of First Instance to state the production capacity of the CIS States as reasons, it must be noted that the Court stated a criterion, which, according to the appellant, that 'the Commission made it clear in its is decisive for determining Community decision that the Agency is not obliged to dependence. meet orders where there are legal or material obstacles to doing so (point 14 of Decision 94/285)', before pointing out that the Com­ mission 'referred first to Article 64 of the Treaty, under which the Agency may act within the framework of agreements con­ 269. Finally, the appellant contends that, con­ cluded between the Community and a third trary to what the Court of First Instance State ... (point 21)'. 89

272. This reasoning is a clear reply by the 275. The judgment shows that the Court Court of First Instance to the part of the referred to point 33 of Decision 94/285, which appellant's plea relating to the Agency's power states that 'a further increase in the propor­ under the Treaty, because the judgment refers tion of supplies coming from the CIS [at expressly to Article 64, the main purpose of present 20-25%] would be difficult to recon­ which is to give the Agency the exclusive cile with the Community's long-term supply 90 right, within the framework of agreements interests'. This is a clear, unambiguous state­ with a third State or international organis­ ment of the reasons which led the Commis­ ation, to enter into contracts for supplies from sion to take the decision in question particu­ outside the Community. larly as, although the Court does not reproduce the whole of point 33, it cites it specifically, so that the appellant could have referred to it and established that the Com­ mission pointed out that 'the Community has concluded multiannual supply agreements with a number of third countries' and that 'the common supply policy must also take account of relations with these trading part­ ners and with other supplier countries'. 9 1 273. Furthermore, it being unnecessary to comment once again on the application of Article 61 in so far as the appellant's submis­ sions in support of this plea relate to the alleged insufficiency of the reasons given by the Court of First Instance and not to the rel­ evance of the legal basis established, it is suf­ 276. It should be observed that the Court of ficient to observe that the reference in the First Instance did not reply expressly to the judgment to the limits on the Agency's obli­ appellant's argument that the Commission gation to meet orders for supplies is an implicit, did not state the reasons why the price stipu­ but clear, reference to that Article of the lated in the contract did not accord with Treaty, which is alleged to form the basis of market-economy conditions or was not the Agency's power to object to the conclu­ market-related. sion of a contract in specific circumstances.

278. However, as I pointed out above when discussing the complaints that Decision 94/285 did not state sufficient reasons in relation to the Agency's power and the risk of depen­ dence on the CIS, the Court of First Instance 5. The plea alleging misuse of powers set out in full the grounds showing why the reasoning of the decision was sufficient on these two points, observing that 'Decision 94/285 discloses clearly and unequivocally the principal reasons for the refusal to conclude 282. The appellant complains that the Court the contract submitted by KLE'. 9 2 of First Instance did not ascertain whether the measures taken by the Agency were within the scope of its powers, which was a neces­ sary prerequisite for verifying the purpose actually pursued by the Agency. According to the appellant, this could not be ascertained because there was no comparable examina­ 279. Having concluded that the Commis­ tion of the role of the Commission itself. sion's decision was justified by the reasoning dealing with these two arguments, the Court was entitled to refrain from examining the complaint relating to price levels other than by dismissing it implicitly by a reference to the sufficiency of the principal reasons for the 283. The appellant contends that the Court, decision. by making no distinction between the Agency and the Commission when it stated that the appellant had not proved that they had both pursued an aim other than implementing the supply policy, disguised the fact that, in this plea, the appellant intended to criticise pri­ marily the lack of reasons in the Commis­ 280. The Commission also notes, correctly, sion's decision and only indirectly to criticise that the Court of First Instance, by summa­ the Agency in that regard. The appellant com­ rising and repeating the principal reasons for plains that the Commission did not exercise the contested decision, espoused the Com­ its right of veto over decisions in excess of the Agency's powers under the Treaty, in accordance with the first paragraph of 92 — Paragraph 146 of the judgment, emphasis added. Article 53.

286. It is sufficient to observe that the Court of First Instance gave an express ruling on the nature and extent of the Agency's powers and 290. The reason is that the only point of law on the legality of the Commission's decision relied upon concerns the Commission's power in the light of those powers. to object to measures taken by the Agency. It must be borne in mind that the plea before the Court of First Instance was that the Com­ mission had misused its powers which, in the absence of arguments to prove that they were exercised for an improper purpose, disposes of the idea of inappropriate use of the right 287. After stating that 'the task of the Agency of veto. is to guarantee one of the essential aims which the Treaty assigns to the Community, in Article 2(d), namely reliability of supplies, in accordance with the principle of equal access to resources', the Court of First Instance pointed out that the Treaty 'establishes that specialised body expressly for that purpose' 9 3 291. Regarding the reference at first instance and that 'where decisions concerning eco­ to the Commission's letter of 20 December nomic and commercial policy and nuclear 1993, it must be observed that the appellant's policy are involved, the Agency has a broad argument seeks to challenge the assessment of discretion when exercising its powers'. 9 4 the evidence before that Court, which can be allowed only in so far as the argument in

93 — Paragraph 85 of the judgment 94 — Ibid., paragraph 90. 95 — Ibid., paragraph 89 et seq..

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296. Under the first paragraph of Article 122 of the Rules of Procedure, where the Court itself gives final judgment in the case, it is to make a decision as to costs. 294. The appellant maintains that, by dis­ missing the claim for damages on the ground that the Agency's conduct and the Commis­ sion's refusal to accede to the appellant's requests were not vitiated by any irregularity, the Court of First Instance disregarded the fact that the applications for annulment related only to the Commission's decision. However, 297. Article 69(3) of the Rules of Procedure, according to the appellant, the claim for dam­ which by virtue of Article 118 applies to the ages related to the damage suffered by reason procedure on appeal, provides that, where of the Agency's unlawful conduct, on which each party succeeds on some and fails on therefore the Court ought to have given a other heads, the Court may order that the ruling. parties bear their own costs.

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Conclusion

298. In view of the foregoing, I propose that the Court:

(1) annul the judgment of the Court of First Instance of 25 February 1997 in Joined Cases T-149/94 and T-181/94 Kernkraftwerke Lippe-Ems ν Commis­ sion, in so far as it did not reply to the plea in Case T-149/94 alleging failure by the Euratom Supply Agency to state the reasons for a unilateral extension of the time-limit laid down by Article 5 bis (f) of the Regulation of 15 July 1975 of the Supply Agency of the European Atomic Energy Community amending the Rules of the Supply Agency of 5 May 1960 determining the manner in which demand is to be balanced against the supply of ores, source materials and special fissile materials;