C-496/99

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Armenia and Azerbaijan, 2 the Commission 5. Article 3(2) of Regulation No 228/96 initiated a tendering procedure. In that provides: connection, Article 1 of that regulation provides:

'The offer of the tenderer shall indicate, for each lot, the total quantity of fruit, with- drawn from the market in accordance with 'A tendering procedure is hereby initiated Articles 15 and 15A of Regulation (EEC) for the supply of a maximum of 1 000 No 1035/72, which he undertakes: tonnes of fruit juice, 1 000 tonnes of concentrated fruit juice and 1 000 tonnes of fruit jams as indicated in Annex I, in accordance with the provisions of Regula- tion (EC) No 2009/95, 3and in particular Article 2(2) thereof and the specific provi- (a) to take over from the producer orga- sions of the present Regulation.' Article 2 nisations concerned, in payment of all (2) of Regulation No 2009/95 provides: supply costs to the delivery stage 'The invitation to tender may relate to the defined in Article 2; ... quantity of products to be removed physi- cally from intervention stocks as payment for the supply of processed products from the same group of products to a delivery stage to be determined in the notice of invitation to tender.'

8. By letter of 6 March 1996, the Commis- sion informed the Azienda di Stato per gli Interventi nel Mercato Agricolo (AIMA), 10. On 26 July 1996, at a meeting orga- the Italian intervention agency, that the nised at its request with the staff of the tender submitted by Trento Frutta SpA had Commission Directorate-General for Agri- been accepted. The Commission pointed culture (DG VI), the applicant presented its out that, depending on the lot in question, objections to the substitution, authorised by that successful tenderer would receive as the Commission, of other fruit for apples payment a given quantity of apples or, and oranges. On 2 August 1996, the alternatively, peaches, or of oranges or, applicant sent to the Commission Technical alternatively, apples or peaches. Report No 94, prepared by the Diparti- mento Territorio e Sistemi Agro-Forestali (Department of Land and Forestry Man- agement) of the University of Padua, on the coefficients of economic equivalence of certain fruit to be used for processing into juice. (The fact of the matter was that, irrespective of the particular circumstances 9. By decision of 14 June 1996, adopted of this case, the decision to fix the after the award, the Commission allowed coefficient of equivalence between apples the successful tenderers to take delivery of and peaches at 1 to 1 had on the whole led — instead of apples or oranges — 'other to distortions on the peach market caused products withdrawn from the markets, in by the associated reduction in the value of predetermined quantities reflecting the pro- peaches.) In the course of those negotia- cessing equivalence of the products in t i o n s , the C o m m i s s i o n reviewed the question'. According to the second recital, arrangements for substituting other fruits that decision was adopted because, since for apples and oranges. It its decision of 6 the award, the quantities of apples and September 1996 amending the decision of oranges withdrawn from the market had 14 June 1996, the Commission fixed new been negligible in comparison with the coefficients of equivalence between peaches quantities required, although the withdra- on the one hand and apples and oranges on wal season was virtually over. The sub- the other, which were less favourable to the stitute products referred to in the decision successful tenderers. Under that decision, were peaches and apricots and the coeffi- which — like the previous decision of 14

— annul the Commission Decision of 6 September 1996 amending the Com- 14. According to what is stated in the mission Decision of 14 June 1996 on judgment under appeal, the Commission the supply of fruit juice and fruit jams put forward the following arguments in intended for the people of Armenia that regard: and Azerbaijan;

'41 The Commission contends that the — order the Commission to pay the costs. application is inadmissible on two

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OPINION OF MR ALBER — CASE C-496/99 P

grounds: the applicant is not directly tenderers are indeed those tenderers and individually concerned by the who offered to accept the smallest Decision of 6 September 1996, and it quantity of apples as payment. In those has no interest in obtaining its annul- circumstances, the fact that the appli- ment. cant took part in the tendering proce- dure in question does not confer on it any special attribute, as compared with any other third person, in relation to the Decision of 6 September 1996.

42 The Commission points out first of all that the applicant does not dispute the award of the lots for which it sub- mitted a tender. It contends that the act contested in this case did not provide for the replacement of apples and 45 Furthermore, the mere fact that a o r a n g e s by p e a c h e s , b u t merely measure may exert an influence on amended the coefficients of equiva- the competitive relationships existing lence between those fruits, that sub- on the market in question is not stitution having been authorised by the sufficient to enable any trader in any Decision of 14 June 1996. form of competitive relationship with the addressee of the measure to be regarded as directly and individually concerned by that measure . . . .

53 Moreover, the Commission does not dispute the fact that its Memorandum No 10663 of 6 March 1996, cited above [at paragraph 8], contains ele- ments which do not correspond to the 15. Citing a number of judgments, the conditions laid down in the notice of Court of First Instance made the following invitation to tender provided for by findings in that regard: Regulation No 228/96, in so far as it provides, inter alia, for the substitution of peaches for apples and oranges as the means of payment for the supplies from Trento Frutta. That memoran- dum therefore amends the arrange- ments for payment prescribed for the '50 The fourth paragraph of Article 173 of different lots. the EC Treaty (now, after amendment. Article 230 EC) confers on natural or legal persons the right to bring an action for annulment against decisions addressed to them and against deci- sions which, although in the form of a 54 The amendment of the arrangements regulation or a decision addressed to for payment prescribed for the differ- another person, are of direct and ent lots was confirmed by the Decision individual concern to them. of 14 June 1996 with regard to all the successful tenderers. Subsequently, the applicant asked the Commission to reconsider that decision. For that purpose, a meeting between the staff of DC VI and the applicant took place on 26 July 1996, following which the 51 It is settled case-law that persons other applicant sent the Commission Tech- than those to whom a decision is nical Report No 94 ... , [to that effect, addressed may claim to be individually see also point 10 above]. concerned, for the purpose of that provision, only if the decision at issue affects them by reason of certain attributes peculiar to them or by reason of factual circumstances in which they are distinguished from all 55 In the light of the new information other persons, and by virtue of those brought to its attention in this way and factors distinguishes them individually of a reconsideration of the situation as in the same way as the person a whole, in particular of the level of the addressed ... . price of peaches on the Community

57 In those circumstances, it must be held that the applicant is individually con- cerned by the contested decision. It is concerned, first, in its capacity as unsuccessful tenderer in so far as one 59 ... of the important conditions of the invitation to tender — that concerning the means of payment for the supplies at issue — was later amended by the Commission. Such a tenderer is not individually concerned merely by the Commission decision which deter- 60 Furthermore, the argument based on mines the fate, be it favourable or the fact that the applicant did not unfavourable, of each of the tenders challenge the Decision of 14 June 1996 submitted in answer to the notice of within the prescribed time-limit must invitation to tender (Simmenthal v be rejected, since the contested decision Commission, paragraph 25). It also cannot be regarded as a measure which retains an individual interest in ensur- is merely confirmatory of that decision. ing that the conditions of the notice of

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COMMISSION v CAS SUCCI DI FRUITTA

61 The argument according to which the 64 It follows that the application is applicant has no interest in bringing admissible.' proceedings since the sole effect of annulling the contested decision would be to reinstate the coefficients laid down in the Decision of 14 June 1996, which are less favourable to the applicant, must also be rejected.

(2) Substance

62 It should not be presumed, for the purpose of determining whether the present action is admissible, that a judgment annulling the Decision of 6 September 1996 would have the effect merely of reviving the coeffi- cients of equivalence laid down by the Decision of 14 June 1996, having 16. According to what is stated in the regard, in particular, to the Commis- judgment under appeal, the Commission sion's obligation to take the necessary put forward inter ¡ilia the following argu- measures to comply with the present ments as regards the plea that Regulation judgment in accordance with Article No 228/96 as well as the principles of 176 of the EC Treaty (now Article 233 transparency and equal treatment had been EC) ... . infringed:

17. The Court of First Instance made the formulating their tenders. In particu- following findings in that regard: lar, the Commission could not subse- quently amend the conditions of the tendering procedure, and in particular those relating to the tender to be submitted, in a manner not laid down by the notice of invitation to tender '72 In connection with Council Directive itself, without offending against the 71/305/EEC of 26 July 1971 concern- principle of transparency. ing the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682), the Court of Justice held that, when a contracting entity had laid down prescriptive requirements in the contract documents, observance of the 74 As stated above, the contested decision principle of equal treatment of ten- allows the successful tenderers, namely derers required that all the tenders Trento Frutta and Loma, to take as must comply with them so as to ensure payment for their supplies products objective comparison of the tenders other than those specified in the notice (judgments in Case C-243/89 Commis- of invitation to tender and, in particu- sion v Denmark [1993] ECR I-3353, lar, peaches instead of apples and p a r a g r a p h 3 7 ; and Case C-87/94 oranges. Commission v Belgium [1996] ECR I- 2043, paragraph 70). In addition, it has been held that the procedure for comparing tenders has to comply at every stage with both the principle of the equal treatment of tenderers and the principle of transparency so as to 75 Such a substitution is not provided for afford equality of opportunity to all in the notice of invitation to tender as tenderers when formulating their ten- set out in Regulation No 228/96. It is ders (Commission v Belgium, cited clear from Annex I to that regulation ... above, [at] paragraph 54). that only the products listed, namely, as regards Lots Nos 1, 2 and 5, apples, and, in respect of Lots Nos 3, 4 and 6, oranges, could be withdrawn by the successful tenderers as payment for the supplies.

78 However, contrary to what the Com- mission contends, none of the provi- 81 Even if there had been such a lack of sions it cites, in particular, the first and availability, at the Community level, of second recitals in the preamble to apples which could be withdrawn, the Regulation No 228/96 and Article 2 fact remains that it was for the (2) of Regulation No 1975/95 ... , Commission to lay down, in the notice authorises such a substitution, even by of invitation to tender, the precise implication. Neither is substitution conditions for any substitution of other provided for in the situation, put fruit for that prescribed as payment for forward by the Commission, where the supplies at issue, in order to the quantities of fruit in the interven- comply with the principles of transpar- tion stocks are insufficient ... . ency and equal treatment, bailing that, it was for the Commission to initiate a new tendering procedure.

79 Furthermore, the contested decision not only provides for the substitution of peaches for apples and oranges, but also fixes coefficients of equivalence by 82 It follows from the foregoing that the reference to circumstances arising after contested decision infringes the notice the award, namely the level of the of invitation to tender ... and also the prices of the fruit concerned on the principles of transparency and equal market in mid-August 1996 although treatment, and that it must therefore be the taking into consideration of such annulled ... .'

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IV — Grounds of appeal (4) the Court of First Instance misinter- preted the concept of an interest in bringing proceedings and in particular the scope of Article 176 of the Treaty (now Article 233 EC) and conse- quently found that the applicant had 18. The Commission bases its appeal, such an interest; lodged by application of 21 December 1999, on five pleas in law, alleging that:

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individually just as in the case of the person 21. The view of the law expressed by the addressed.'5 T h a t definition therefore Court of First Instance in the judgment focuses on ascertaining whether the situa- under appeal extends to excess the scope of tion of the applicant distinguishes it, by the principle of equal t r e a t m e n t of virtue of certain circumstances, from any tenderers. Although all tenderers taking other third parties and thus corresponds to part in a public tendering procedure indeed the wording of the first plea. Since, more- must be afforded equal treatment before the over, similar consideration has been given award, the legal position of the successful to these two pleas in the respective submis- tenderer differs from that of the unsuccess- sions of the parties, they will be examined ful tenderer once the contract has been together below. awarded. The Commission's relationship with the successful tenderer is contractual and, therefore, defined by the rules govern- ing impossibility of performance, force majeure, etc. By contrast, there is no longer any legal relationship with unsuccessful tenderers after the award. The public (1) The first and third pleas, alleging that procurement directives are no longer the applicant has no right of action in the applicable after the award. absence of individual concern

(a) Arguments of the parties

(i) The Commission 22. The Commission submits that the decision contested by the applicant, which concerns only the internal relationship with the successful tenderer, was adopted in the light of exceptional circumstances quite some time after the award. It could not, therefore, affect the applicant in a manner 20. The Commission takes the view that different to any other third party. The the applicant had no right of action since it logical consequence of the approach taken was not individually concerned by the by the Court of First Instance would have contested decision. been to grant Allione Industria Alimentare SpA leave to intervene, but the Court expressly dismissed an application to that 5 — Case 25/62 Plaumann v Commission[1963] ECR 95. effect.

26. The applicant takes the view that the first plea raised in appeal is inadmissible because the Commission is merely relying on an argument that it has already put forward at first instance. 7The third plea raised in appeal is inadmissible because the 24. The Court of First Instance attached Commission is raising it for the first time undue importance to the memorandum sent before the Court of Justice although it was on 6 March 1996 to AIMA, which the aware of it even at first instance. 8 Commission regards as non-binding. The memorandum was drafted as a result of exceptional circumstances and contains nothing more than a suggestion, not an imperative requirement, that the successful tenderers who agree to the arrangement be paid in fruit other than those originally 27. As far as the applicant is concerned, the specified in the invitation to tender. Court of First Instance delivered the correct judgment. The applicant is individually concerned by the contested decision and accordingly entitled to institute proceed- ings. This is true not simply because it suffered an economic loss and approached the Commission about the problem but 25. The Commission further submits that it precisely because it had taken part in the is also apparent from the case-law 6 that the tendering procedure. The applicant submits fact that a decision is adopted which originates from a person's request is not such as to differentiate that person from 7 — Order in Case C-244/92 P Kupka-Floridi v ESC [1993] ECR I-2041, paragraph 10, Case C-354/92 P Eppe v Commission [1993] ECR I-7027, paragraph 8, and order in Case C-338/93 P De Hoe v Commission [1994] ECR I-819, 6 — Joined Cases T-481/93 and T-484/93 Exporteurs in Levende paragraph 19. Varkens and Others v Commission [199J] ECR II-2945, 8 — In that regard, C.A.S Succhi di Frutta relies inter alia on the paragraph 59, and order in Case C-10/95 P Asocarne v judgment in Case C-7/95 P Deere v Commission [1998] Council [1995] ECR I-4149, paragraph 39. ECR I-3111, paragraph 62.

(i) Admissibility 9 29. The Court of Justice and the Commis- sion, in its statements as well as in relation to the authorities of the Member States, have always upheld the principle of the equal treatment of tenderers in the context 31. In paragraphs 50 to 58 of its judgment, of tendering procedures. It follows that the the Court of First Instance addresses the authorities inviting tenders have to adhere issue of individual concern. Thus, the third strictly to the terms of the invitation to ground of appeal is admissible because the tender which they themselves laid down subject-matter of the proceedings before the and which prompted the tenderers to take Court of First Instance is not changed in the part in the tendering procedure and to appeal, for the purposes of Article 113(2) of submit a particular tender. The principles of the Rules of Procedure of the Court of equal treatment and transparency cannot, Justice, as a result of reliance on that on account of their importance, be applied ground. only at the stage prior to the award.

9 — Case C-243/89 Commission v Denmark [1993] ECR I- 3353, paragraph 37, Case C-87/94 Commission v Belgium [1996] ECR 1-2043, paragraph 54, Case T-203/96 Embassy Limousines & Services v Parliament [1998] ECR 11-4239, 32. With regard to the abovementioned paragraph 85, and Case T-145/98 ADT v Commission 2000] ECR II-387, paragraph 164. argument raised at first instance and put

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forward by C.A.S. Succhi di Frutta in these divergent views as the basis for its proceedings against the admissibility of the appeal. In that respect, there is no question second and fourth pleas, I intend at this of a mere repetition of submissions based juncture to make the following general on facts; what is involved is, rather, a points which will not be repeated later dispute concerning points of law, which when it comes to examining the other typifies the appeal procedure. grounds of appeal.

10 — Orders in Kupka-Floridi v ESC and De Hoe v Commission (cited in footnote 7) and judgment in Eppe v Commission (cited in footnote 7). 11 — See point 19.

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40. The Court of Justice held in Asocarne that, where an individual has participated in the preparation of a legislative measure, 42. The judgment in CIRFS, 14 one of the he may not, for that very reason, subse- cases described by the Court of Justice in quently bring an action against that mea- sure if, in the procedure for the adoption of 13 — Cited in footnote 6, at paragraphs 37, 39 and 40. 14 — Case C-313/90 Comité International de la Rayonne et des Fibres Synthétiques (CIRFS) and Others v Commission 12 — Order in Case C-10/95 P (cited in footnote 6). [1993] ECR I-1125.

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46. In the Commission's view, that conclu- sion is incompatible with the judgment in Exporteurs in Levende Varkens. In that judgment, the Court of First Instance held that the fact that a person intervenes arbitrarily in the procedure leading to the adoption of a Community measure, parti- cularly by sending to the competent Com- munity institution letters criticising a mea- sure which that institution has already adopted and seeking to influence its future action, is not such as to differentiate that person from any other. 19 43. The Court also held in Van der Kooy 17 that a person is differentiated from all others as a result of his previous active participation in the procedure for granting aid involving his submission of written comments and his close contact with the Commission departments responsible for 47. It is uncertain whether the applicant's such matters. intervention by means of a complaint can as such be described as arbitrary, because of

15 — Cited in footnote 6, at paragraph 36. 16 — CIRFS and Others v Commission (cited in footnote 14, at 18 — J o i n e d Cases C-68/94 and C-30/95 France and Others v paragraphs 29 to 31). Commission [1998] ECR I-1375, paragraphs 53 to 55. 1 7 — J o i n e d Cases 67/85, 68/85 and 70/85 Van der Kooy and 19 — J o i n e d Cases T-481/93 and T-484/93 (cited in footnote 6, Others v Commission [1988] ECR 219, paragraph 22. at paragraph 59).

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the applicant's status as a tenderer in the Belgium 24 and Embassy Limousines, 25 it previous tendering procedure. In that also referred to the principle of transpar- regard, the applicant is differentiated from ency, which likewise determines the proce- Allione which did not submit any tender in dure. the tendering procedure and which the Court of First Instance denied leave to intervene. 20

20 — Order in Case T-191/96 C.A.S. Succhi di Frutia v Commission [1998] ECR II-573. 24 — Cited in footnote 9, at paragraph 54. 21 — OJ 1992 L 209, p. 1. 25 — Cited in footnote 9, at paragraph 85. 22 — OJ 1993 L 199, p. 84. 26 — In that regard, see further the findings cited in this Opinion 23 — Commission v Denmark (cited in footnote 9, at paragraph under heading III, section 2, from the judgment of the 37), Commission v Belgium (cited in footnote 9, at Court of First Instance, at paragraphs 72 to 79. The paragraph 54), ADT v Commission (cited in footnote 9, Commission does not appeal against the basic assumption at paragraph 164) and Embassy Limousines & Services v that it committed such an infringement in the tendering Parliament (cited in footnote 9, at paragraph 85). procedure.

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principles of equal treatment and transpar- apples, there would have been no need to ency at least be mitigated by the introduc- fix coefficients of equivalence between tion of a more favourable decision on those two types of fruit because they would, equivalence between apples and peaches in that case, have been pointless. which corresponds to the market condi- tions.

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memorandum is not simply a non-binding the contested decision addressed to certain proposal. However, when the memoran- Member States, the Commission laid down dum was drafted, there was — according to amended conditions governing the contract other information supplied by the Commis- awarded to the successful tenderer, but sion — no discernible shortage of apples. It instead of discussing those conditions with is apparent from the arguments raised in that successful tenderer, namely the other relation to the fifth plea that the period party to the contract, the Commission had during which apples were withdrawn from held negotiations on the matter with the the market and, by extension, could be applicant. It was therefore acting largely made available to the intervention agencies independently, in some kind of position of did not end until 31 May 1996, that is to superiority rather than as an equal partner say three months later. The Commission in a relationship established purely under submits that the original drafting of the civil law. It thus maintained its contracting- conditions of the invitation to tender was authority status, even in the performance of itself contingent on there having been the contract, along with the rights and sufficient availability of apples in preceding obligations arising in that connection. years. The actual decision to allow sub- stitution, which forms the basis and sub- stance of the decision at issue in this case, was thus adopted not primarily in the light of unforeseeable circumstances arising after the award of the contract.

(i) The Commission 60. Just as this approach offends against the principles of equal treatment and transparency in the tendering procedure, it would likewise offend against the principle that where there are procedural rights and 63. In asserting that a new invitation to guarantees, there must be a procedure in tender should have been issued in the event place for their implementation. 27 of a shortage of apples, the Court of First Instance has erred in law and has contra- dicted itself because it at the same time takes the view that the Commission may not alter the terms of payment. Since, in those circumstances, the Commission would have to pay pecuniary damages to the successful tenderers who did, for their 61. As the Commission's negotiating part- part, comply with the contract, this would ner in the procedure prior to the [contested] also lead to an amendment of the terms of decision and on account of its status as payment in that money would be substi- unsuccessful tenderer, the applicant was tuted for the apples. Following the therefore individually concerned by the approach taken by the Court of First contested decision and consequently Instance, the unsuccessful tenderers could entitled to bring an action. have submitted different tenders had they in fact known of that substitution possibility.

64. The Commission adds that since the 62. The first and third pleas raised must public procurement directives do not apply therefore be rejected. beyond the period from the invitation to tender to the award, they cannot be relied on for asserting that a new tendering procedure should be initiated where there 27 — Case 169/84 Cofaz and Others v Commission [1986] ECR 391, paragraph 23. is a change in circumstances during the

67. In the applicant's view, the second plea 65. The Court of First Instance has, is likewise inadmissible because it has according to the Commission, made the already been raised in the proceedings at mistake of considering the two stages as first instance. one. The Commission was under an obliga- tion to pay the other party to the contract, despite the unforeseeable shortage of apples. It fulfilled that obligation by making peaches available. That obligation to effect payment at all costs in some form or another arises from its status as a party to 68. The Commission's arguments are sub- the contract and explicit reference to it as stantially flawed. The subsequent amend- such in the invitation to tender was not ment of the conditions resulted primarily in essential. discrimination against the unsuccessful tenderers. Such an amendment should have been made only by initiating a new tender- 28 — Case C-337/98 Commission v France [2000] ECR I-8377, ing p r o c e d u r e . The C o m m i s s i o n ' s paragraph 44 et seq. approach, which the applicant regards as

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arbitrary, constitutes an infringement of the breach of obligations in the subsequent principles of transparency, equal treatment performance of the contract. The creation of tenderers and, ultimately, lawfulness. of that right and the form it takes are unconnected with the issue of whether the original right to payment was to be satisfied in money or in kind.

(b) Assessment

72. As regards the issue — again, in the Commission's view, suggesting inconsis- tency — of whether the terms of payment applying to the successful tenderers who 70. That theory is precluded by the fact have complied with the contractual provi- that the original right to payment and the sions would have been amended had a new right to damages, which does not accrue invitation to tender incorporating the pos- until later and is derived from the first sibility of substituting peaches been issued, I paragraph of Article 288 EC in conjunction should first of all refer to the fact that the with the relevant provisions of civil law, are decision to allow substitution was taken as clearly distinguishable rights. The form far back as 6 March 1996 in the memor- taken by the right to payment as the andum to AIMA. The successful tenderers original right to performance is determined were awarded their respective contracts by the conditions of the invitation to concurrent with that decision. Therefore, tender. The right to damages, however, the successful tenderers for their part could arises under civil-law provisions in the not have already performed the respective event of impossibility of performance or a contracts by that time.

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73. Furthermore, a new tendering proce- possibility of substitution by other fruit in dure meets the legal certainty requirement the notice of the invitation to tender would only if, as is the case here during the award have loaded the notice with uncertainty and procedure, an essential component of the in that respect offended against the princi- conditions of the invitation to tender is ples of equal treatment and transparency. altered. Those considerations remain unaf- On the contrary, it is the fear that the fected by any rights to damages that may contracting authority and other tenderers arise. could circumvent the procurement rules and subsequently amend the conditions of the invitation to tender that leads to an element of uncertainty which does not satisfy the requirements for transparency or legal certainty.

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78. The second plea must therefore be on equivalence which has not been con- rejected. tested has no basis in law and conflicts with legal certainty. The obligation to repeal the provisions declared unlawful in the judg- ment relates only to arrangements which have been laid down under the annulled measure. (3) The plea alleging that the Court of First Instance erred in law in finding that the applicant had an interest in bringing proceedings on the basis of Article 233 EC

81. It is no longer possible for the Commis- sion to initiate a new tendering procedure since the dispatch of goods to the Caucasus has stopped. (a) Arguments of the parties

(i) The Commission 82. The Commission submits that prob- lems arise in the enforcement of the judgment delivered by the Court of First Instance in that the judgment did not mention any specific measures that would have to be implemented, nor did it limit the annulment. Even now, on account of the 79. The Commission's view is that the resulting retroactive effect, rights accruing applicant has no interest in bringing an to the successful tenderers under the earlier action for the annulment of the contested decisions still have to be satisfied, and the measure. The sole consequence of a judg- procedure has indeed been very protracted. ment to that effect would be to reinstate the original decision on equivalence, which is less favourable to the applicant and which it did not contest.

(ii) C.A.S. Succhi di Frutta

84. The applicant argues that it has a judgment the Court of First Instance clearly legitimate interest in obtaining the annul- finds that the possibility of substituting at a ment of the contested decision. The Court later stage peaches for the other fruit of Justice has held that such an interest is concerned constituted an error in law. maintained even where the contested deci- sion has already been implemented because its annulment is capable of having further consequences and of serving to prevent repetitions of the unlawful measures in the future. 29 An interest in bringing proceed- (b) Assessment ings arises even in the context of challen- ging a decision that has already been repealed since the annulment of that deci- sion by the Court of First Instance cannot be equated with its repeal by the Commis- sion and since it also has retroactive 86. The Commission takes the view that effect. 30 the applicant has no interest in bringing the action since annulment of the contested decision means that the decision of 14 June 1996, which is less favourable to the applicant, will be reinstated.

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32 — AKZO Chemie v Commission (cited in footnote 29, at paragraph 21) and Glencore Grain v Commission (cited in 33 — Order in Case T-191/96 R C.A.S. Succhi di Frutta v footnote 29, at paragraph 31). Commission [1997] ECR II-211.

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92. Furthermore, the Commission is (4) The plea alleging a misinterpretation of required under the first paragraph of Article the rules of the common organisation of the 233 EC to take all the necessary measures market in fruit and vegetables to comply with the judgment of the Court of Justice. Those measures include, inter alia, the removal of the effects of the illegal conduct found in the judgment annulling the act 34 with the result that the Commis- sion may be required by the judgment to (a) Arguments of the parties pay damages on its own initiative and without further legal action.

(i) The Commission

97. For their respective calculations to quently its subsequent conclusions were ascertain the quantity of apples available, also erroneous. both the Court of First Instance and the applicant relied — incorrectly — on dates inconsistent with the intervention mechan- isms. Within the common organisation of the market in fruit and vegetables, inter- vention agencies do not have the option of (ii) C.A.S. Succhi di Frutta buying in or storing stock, except in serious crisis situations. The fruit withdrawn from the market has to be destroyed or distrib- uted free of charge among relief organisa- tions. 100. The applicant takes the view that the fifth plea is inadmissible as it involves a complaint concerning an incorrect apprai- sal of the facts, for which the Court of Justice has no jurisdiction in the appeal procedure. 36

9 8 . T h e a n n e x t o the C o m m i s s i o n ' s defence in the action before the Court of First Instance indicating that 200 000 tonnes had been available merely served to illustrate the fact that there had been 101. It adds that the Court of First Instance sufficient availability of apples in the appraised the documents made available by preceding years. It was therefore reasonable the Commission correctly and was right to to assume, when the invitation to tender assume that there was sufficient availability was issued, that there would be sufficient of apples for the successful tenderers. apples available for withdrawal from the market in order to pay for the fruit juice supplied.

(b) Assessment

99. The Court of First Instance failed to take account of those legal issues and 102. Under Article 225(1) EC and Article misinterpreted the information provided. 51 of the EC Statute of the Court of Justice, The substantive inaccuracy can clearly be appeals are limited to points of law. seen from the documents handed over. The Accordingly, appeals may be based only Court of First Instance erred in law when it regarded as available in intervention stocks apples withdrawn from the market prior to the date from which the successful tenderers 36 — Deere v Commission (cited in footnote 8, at paragraph 21) and order in Case C-436/97 P Deutsche Bahn v Commis- could withdraw such stocks, and conse- sion [1999] ECR I-2387, paragraph 19.

103. Although the Court of Justice has jurisdiction to review the legal characterisa- tion of the facts established or assessed by 105. Should the Court of Justice indeed the Court of First Instance and to review the regard itself as having jurisdiction to review legal conclusions it has drawn from those the assessment by the Court of First facts, 38 it has no jurisdiction to proceed Instance of the facts in this case, then, with a new examination of the facts or to following the underlying line of reasoning, assess the evidence placed before it. 39 In the dispute concerning the availability of taking the view that the Court of First apples when the decisions on equivalence Instance should have drawn different con- were adopted is irrelevant. As repeatedly clusions from the documents placed before stated above, the crucial infringement of the it in terms of the availability of apples, the principle of the equal treatment of tenderers Commission is simply objecting to the lay in the fact that the memorandum to assessment by the Court of First Instance AIMA of 6 March 1996 concerning the of the facts and of the evidence. Since that implementation of the award to the success- assessment is precluded from a review by ful tenderer provided for the possibility to the Court of Justice, the corresponding plea substitute peaches for apples in payment for is accordingly inadmissible. the supplies given. However, at that point in time, the Commission itself, by its own account, assumed on the basis of experi- ences from previous years that sufficient 37 — Case C-352/98 P Laboratoires Pharmaceutiques Berga- apples would be available. Consequently, at derm v Commission [2000] ECR I-5291, paragraph 49, and Deere v Commission (cited in footnote 8, at paragraph the time relevant in this case, there was no 21). 38 — Deere v Commission (cited in footnote 8, at paragraph 21) unforeseeable shortage of apples. and order of the Court of justice in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 39. 39 — Eppe v Commission (cited in footnote 7, at paragraph 29) and order in Deutsche Bahn v Commission (cited in footnote 36, at paragraph 19). 40 — Case C-136/92 P (cited in footnote 35, at paragraph 49).

— dismiss the appeal;

— order the appellant to pay the costs.

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