C-64/98

2. I shall now summarise the statement of facts contained in the contested judgment, in so far as it is relevant to this appeal. 5. The first tendering procedure at issue was organised by Commission Regulation (EEC) No 899/90 of 5 April 1990 which opened an invitation to tender for the sale for export of baled tobacco held by the Greek intervention agency,2 and involved 3. The applicant is a Greek company four lots of baled raw tobacco from the whose main business is processing and 1986 and 1987 harvests, divided by vari- dealing in tobacco in Greece and abroad. eties and totalling 5 271 428 kg. The first At the material time it had a tobacco lot comprised 1 805 903 kg of tobacco and processing and storage centre. Depending was made up of the varieties Mavra, Kaba on its needs, it also rented various small Koulak Classic and Elassona, Kaba Koulak factories and offices. It worked with inter- Non-Classic, Katerini, Burley EL and Bas- mediaries in Greece and abroad. mas. The second lot comprised 1 519 836 kg of tobacco and was composed of the

* Original language: Spanish. 1 — Case T-152/95 Petrides v Commission [1997] ECR II-2427. 2 — OJ 1990 L 93, p. 7.

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6. The second tendering procedure at issue was organised by Commission Regulation (EEC) No 1560/90 of 8 June 1990 opening 8. The fourth tendering procedure was an invitation to tender for the sale for organised by Commission Regulation export of baled tobacco held by the Greek (EEC) No 2436/91 of 7 August 1991 open­ intervention agency. 3It related to the same ing an invitation to tender for the sale of four lots of baled raw tobacco. The appli­ baled tobacco held by the German, Greek cant submitted a bid for the first and fourth and Italian intervention agencies. 5 The lots (bidding GRD 91.11 and GRD 101.11 total quantity of 105 486 276 kg was made per kilogram respectively). On 7 August up of 11 lots, divided into four groups. 1990 the Commission accepted the bid Each group of lots could be put up for sale from another tenderer for the second lot (of only when a contract for the previous GRD 102 per kilogram), but rejected all group of lots had been awarded. The aim bids for the first, third and fourth lots, on was to obtain bids for all the varieties of grounds of risk of disturbance of the tobacco, and dealings were to commence market. with the least popular varieties on the market. Each lot comprised tobaccos of a given variety held by the various interven­ tion agencies of the various Member States concerned. The applicant took part in a number of sales in that series. Its bids, which were for a quantity lower than that 7. The third tendering procedure at issue fixed for the lots in question, were rejected was organised, for the three remaining lots, as not fulfilling the tendering conditions. by Commission R e g u l a t i o n (EEC)

Applicable legislation 13. Article 1 of Commission Regulation (EEC) No 3389/73 of 13 December 1973 laying down the procedure and conditions 11. On 21 April 1970 the Council adopted for the sale of tobacco held by intervention Regulation (EEC) No 727/70 on the com-

6 —Joined Cases C-232/91 and C-233/91 [19911 ECR I-5351. 8 — OJ, English Special Edition, 1970 (I), p. 206. 7 —OJ 1992 L 18, p. 16. 9 — OJ, English Special Edition, 1971 (I), p. 78.

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agencies, 10 a regulation which has been 15. Originally, Article 5(1) provided: amended several times, provides:

'Every tenderer shall provide the interven­ ' 1 . Baled tobacco held by intervention tion agency concerned with security in an agencies shall be remarketed by invitation amount of 0.28 unit of account per kilo­ to tender or by sale by public auction. gram of raw tobacco.'

17. By judgment of 17 December 1997 the — infringement of Articles 1 and 6 of Court of First Instance declared the action Regulation No 3389/73 and 7(2) of inadmissible as regards the first tendering Regulation No 727/70; procedure and dismissed it as regards the other three tendering procedure, ordering the applicant to pay the costs.

— breach of the principle audi alteram partem and the principle of equality of arms; Grounds of appeal

18. The appeal is based on the following grounds: — incorrect assessment of the appellant's allegations concerning the principle of equal treatment and the increase of the amount of the guarantee in relation to the fourth tendering procedure;

— inadequate statement of reasons regarding achievement of the objective of 'avoiding any disturbance of the market' in relation to the second and third tendering procedures; — infringement of Regulation No 3389/73.

— incorrect assessment of the facts for the purpose of applying the principle of proportionality in relation to the sec- ond tendering procedure; Before examining these various grounds of appeal, I should point out that I shall take into account only those which were stated in the original application and the argu- ments put forward in the reply in so far as they develop or clarify the grounds of — distortion of the clear sense of the appeal. This is the true interpretation of evidence produced in considering whe- Article 117(1) of the Rules of Procedure, ther the principle of equal treatment which provides that 'the appeal and the had been observed in relation to the response may be supplemented by a reply second tendering procedure; and a rejoinder'.

21. It should be pointed out that it was for the applicant to plead the unlawful conduct 20. The Commission considers that this of the defendant institution before the ground of appeal is merely an assertion and Court of First Instance; this is an essential therefore expresses doubts regarding its requirement for establishing the liability of admissibility. the Community because, in an action for compensation, the illegality of the conduct of an institution is not presumed nor can it be investigated at the motion of the Court. The Court's task is to determine whether such allegations are substantiated. The Commission points out that it was for the applicant to prove the alleged infringe­ ment of the principle of proportionality before the Court of First Instance, and that, in view of the indeterminate nature of Petrides' claims, the Court first of all stated that failure to adhere to the objective of not disturbing the market was liable to lead to Therefore, with regard to the alleged fail­ the annulment of the acts of the admini­ ure, on the part of the Commission, to fulfil strative institution (paragraphs 50 and 51 its obligation to avoid any disturbance of of the contested judgment); it then specified the market when selling the tobacco held what might constitute evidence of that by the intervention agencies, it was the

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PETRIDES V COMMISSION

Secondly, the appellant criticises the Court of First Instance for saying that the Com- mission's refusal of the bids received in the second tendering procedure prompted operators to tender higher prices in the next procedure in order to show that the For the above reasons this ground of appeal decision rejecting the bids was appropriate must fail, in so far as it concerns an to the aim of not disturbing the market. allegation which, even if upheld, could The appropriateness of a measure must, in not lead to the annulment of the ruling at its view, be assessed by reference to the first instance. It should therefore be information available at the time the deci- rejected. sion was taken, not a posteriori.

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23. So far as the first part of this ground of inaccuracies in the findings of the Court of appeal is concerned, the Commission has First Instance. pointed out that the arguments on which it is based are new ones and that it should therefore be rejected. I, for my part, think that, although it is true that the specific arguments are new, the ground of appeal itself is not; however, it should be rejected, As neither of those conditions is fulfilled, for the reasons I shall explain. the first part of this ground of appeal must be declared inadmissible.

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PETRIDES V COMMISSION

C. Third ground of appeal: Distortion of either in whole or in part. What is con- the clear sense of the evidence produced in tended is that, on the basis of that evidence, support of the allegation that the principle the Court did not reach the conclusions for of equal treatment was not observed in which the appellant was hoping. One of the relation to the second tendering procedure grounds put forward before the Court of First Instance was thus, quite literally, reproduced, relying on the same facts on which that Court rejected it. Therefore this plea is, in effect, a request that the Court of 25. In this ground of appeal the appellant Justice review an original allegation, which company maintains that, in rejecting the exceeds the jurisdiction conferred on it by allegation of a breach of the principle of Article 49 of its Statute. equal treatment in the second tendering procedure, the Court of First Instance distorted the clear sense of the information contained in the minutes of the Tobacco Management Committee and in the Court of Auditors' Special Report regarding the The third ground of appeal should there- fact that Petrides' bid was significantly fore be declared inadmissible. higher. It was clear from those minutes that the appellant's bid for the fourth lot, which was rejected, represented 75% of the value of the tobacco, while a competitor's bid for the second lot, which was accepted, represented only 23% of the actual value of the product. The Court of Auditors reached a similar conclusion in its report (points 4.53 to 4.55). D. Fourth ground of appeal: Infringement of Articles 1 and 6 of Regulation No 3389/73 and 7(2) of Regulation No 727/70

The same must be true in this case. There­ 29. It must be said, first of all, that the fore, in areas in which the institutions have tendering procedures carried out by the considerable latitude, even decisions which Commission in the course of managing the may subsequently prove to be open to common organisation of the market in raw criticism do not necessarily cause the tobacco call for an appraisal of a complex Community to incur liability in the absence financial situation. As the Commission of a manifest error of assessment on the says, the question whether or not there is part of the institution. 16 a risk of disturbing the market is, by its very nature, complex and never a simple and mechanical administrative operation. This opinion was stated by the Court of Justice in its judgment of 7 April 1992 13 concerning the Commission's management of the market in vinous alcohols. In fact, Regulation No 3877/88, 14 which governs 30. As far as the alleged infringement of certain aspects of the common organisation Articles 1 and 6 of Regulation No 3389/73 of the sector, establishes a tendering proce­ is concerned, the appellant's allegations are dure similar to the one in this case and new ones and must, therefore, be rejected. giving the Commission powers similar to In fact, 'to allow a party to put forward for those at issue in these proceedings. Regula­ the first time before the Court of Justice a tion No 3877/88 also imposes on the plea in law which it has not raised before Commission the obligation to ensure, in the Court of First Instance would be to any tendering procedure, that various allow it to bring before the Court, whose objectives, among them that of 'avoiding jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal, 13 — Case C-358/90 Compagnia Italiana Alcool ν Commission the Court's jurisdiction is thus confined to [1997] ECR I-2457. 14 — Council Regulation No 3877/88 of 12 December 1988 which lays down general rules concerning the release on to the market of alcohols obtained in accordance with the distillations for which provision is made in Articles 35, 36 15 — Paragraph 42 [1992] ECR I-2503 (emphasis added). and 39 of EEC Regulation No 822/87 and which are held 16 — Case 27/85 Vandemmoortele v Commission [1987] ECR by the intervention agencies (OJ 1988 L 346, p. 7). 1129, paragraphs 31 to 34.

review of the findings of law on the pleas dure and the increase of the amount of the argued before the Court of first Instance.' 17 guarantee, should not have relied solely on the documents cited by the Commission in its reply to the written questions. According to the appellant, in view of the timing of the production of those documents and their 31. Furthermore, not only can the particu- complexity, the requirements of the princi- lar interpretation of the provisions of ple audi alteram partem and the principle Regulation No 3389/73 suggested by the of equality of arms had not been observed, appellant not be specifically inferred from because the appellant had not had an their terms but such an interpretation leads opportunity of verifying the information to manifestly absurd results. In fact, it provided in them. Moreover, the Commis- makes no sense for the minimum price sion's reply was lodged at the Registry of fixed by the Commission for a specific lot the Court of First Instance one day after the necessarily to apply to all the other lots prescribed deadline. offered in the same tendering procedure when the quality and other features of the product may vary considerably, as happens in practice and did happen, more particu- larly, in the third tendering procedure at 33. It is not necessary to ascertain whether issue. the period which elapsed between notifica- tion to the appellant of the Commission's reply, which was lodged at the Registry of the Court of First Instance on 15 April 1997, and the hearing of 2 May was long The fourth ground of appeal must therefore enough for Petrides' lawyers to acquaint suffer the same fate as the three previous themselves with its content and, if neces- grounds of appeal and be rejected. sary, to dispute it; it need merely be pointed out that the appellant had an opportunity to make any observations on that reply which it considered necessary, at the very latest during the hearing. As it did not do this, nor request an adjournment to enable it to analyse the Commission's reply at E. Fifth ground of appeal: Breach of the length, nor, as a last resort, express any principle audi alteram partem and the reservation or make any protest, it must be principle of equality of arms considered to have acquiesced to the rela- tively short time at its disposal and to have waived any possible procedural safeguard which it might have had, essentially, in 32. In this ground of appeal Petrides sub- proceedings inter partes. mits that the Court of First Instance, in rejecting the appellant's pleas concerning the illegality of the fourth tendering proce-

36. In my opinion, the appellant is confus­ ing illegal conduct with damage. As the Commission reminds us, a combination of legal acts cannot produce an illegality; this For all the above reasons, the fifth ground is not necessarily the case when an accu­ of appeal must also be rejected. mulation of acts causes damage. In fact, an act which is not, in itself, harmful may become so when in it takes effect in conjunction with others. However, as the Court of First Instance merely considered the question of the legality of the Commis­ sion's conduct and did not need to consider whether the other conditions of Commu­ F. Sixth ground of appeal: Incorrect assess­ nity non-contractual liability were ful­ ment of the appellant's allegations concern­ filled, 1 8 this line of argument cannot be ing the principle of equal treatment and the put forward in an appeal on a point of law. increase of the amount of the guarantee in relation to the fourth tendering procedure

34. The appellant maintains that the Court 37. Furthermore, at no point does Petrides of First Instance, by reviewing separately produce new evidence to prove the illega­ the legality of each of the measures adopted lity of the conduct of the Community by the Commission, failed to have regard to institution, which an overall assessment of the appellant's submissions that the institu­ the operations at issue would have tion's illegal conduct stemmed from those revealed. measures taken as a whole.

38. For these reasons the sixth ground of 35. The Commission contends that the appeal must also be rejected. Court of First Instance is permitted, under its Rules of Procedure, to structure its judgments as it considers appropriate. It 18 — See paragraph 109 of the contested judgment.

Conclusion

42. In the light of the foregoing arguments, I propose that the Court of Justice declare that the second and third grounds of this appeal are inadmissible, reject all the others and order the appellant to pay the costs.

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