JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

18 September 1997
(1)

(Actions for the free supply of agricultural products to the peoples of Georgia,Armenia, Azerbaijan, Kyrgyzstan and Tajikistan — Successful tenderer's duty topay dispatch money)

In Joined Cases T-121/96 and T-151/96,

Mutual Aid Administration Services NV (MAAS), a company incorporated underBelgian law, established in Antwerp (Belgium), represented by Jan Tritsmans andKoenraad Maenhout, of the Antwerp Bar, with an address for service inLuxembourg at the Chambers of René Faltz, 6 Rue Heinrich Heine,

applicant,

v

Commission of the European Communities, represented by Blanca Vilá Costa, anational civil servant on secondment to the Commission, and Hubert van Vliet, ofits Legal Service, acting as Agents, with an address for service in Luxembourg atthe office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre,Kirchberg,

defendant,

APPLICATION for annulment of the Commission's decisions requiring theapplicant to pay dispatch money,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: K. Lenaerts, President, P. Lindh and J.D. Cooke, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedure and further to the hearing on 5 June 1997,

gives the following

Judgment

Background to the dispute

1.

    The applicant, Mutual Aid Administration Services NV, is a shipping company.

2.

    On 4 August 1995 the Council adopted Regulation (EC) No 1975/95 on actions forthe free supply of agricultural products to the peoples of Georgia, Armenia,Azerbaijan, Kyrgyzstan and Tajikistan (OJ 1995 L 191, p. 2, hereinafter'Regulation No 1975/95‘). By Regulation (EC) No 2009/95 of 18 August 1995 (OJ1995 L 196, p. 4, hereinafter 'Regulation No 2009/95‘), the Commission laid downdetailed rules for the application of Regulation No 1975/95.

Case T-121/96

3.

    On the basis of Regulation No 1975/95, the Commission adopted Regulation (EC)No 2781/95 of 1 December 1995 on the transport for the free supply to Georgia,Armenia, Azerbaijan and Tajikistan of rye flour (OJ 1995 L 289, p. 5, hereinafter'Regulation No 2781/95‘).

4.

    That regulation provided for a tendering procedure for the supply costs of 23 000tonnes of rye flour.

5.

    Pursuant to Article 1(1) of Regulation No 2781/95 and Article 2(1)(b) ofRegulation No 2009/95, the successful tenderer was required to supply the flourfrom a Community port or railway station, on the means of transport, to a pointof take-over and delivery stage to be determined in the invitation to tender.

6.

    On 18 December 1995 lot No 3 of the tendering procedure was awarded to theapplicant which was notified to that effect by fax and by post the same day. Thelot consisted of the delivery of 2 500 tonnes (net) destined for Armenia, madeavailable in the port of Antwerp with effect from 18 January 1996, and 2 000tonnes (net) destined for Georgia, made available in the port of Rotterdam witheffect from 15 January 1996. The remuneration paid to the applicant in respectof that transaction was BFR 12 541 273.

7.

    The Commission's letter informing the applicant of the award of the contract wasaccompanied by extracts from a memorandum established on 10 October 1995between the Commission and the Georgian authorities on the basis of Article 10(5)of Regulation No 2009/95 (hereinafter 'the Memorandum‘). It requested theapplicant to read the extracts carefully and to ensure that the instructionsconcerning payment of discharge and transport costs were followed.

8.

    In accordance with Regulation No 2009/95 and the Memorandum, the applicantwas free to organize the shipping as it chose, but the Georgian authorities were to be responsible for discharging the ships in the Georgian ports and thesubsequent transport of the goods to their destination.

9.

    The applicant entered into a charterparty with a shipowner on the COP (customsof the port) basis for shipment of the goods. It was expressly agreed that nodispatch money would be paid; dispatch money is an incentive payment receivedby the undertaking responsible for discharge if the discharge is completed fasterthan anticipated.

10.

    Article 10(5) of Regulation No 2009/95 provides that payments in respect ofunloading and transport as well as demurrage and dispatch to be effected in favourof Georgian administrations must be executed in accordance with the terms andconditions fixed in the Memorandum. Demurrage is an allowance receivable by theshipowner as compensation for any loss he may suffer as a result of any delaybeyond the time originally anticipated for the discharge because, during that delay,he is unable to transport any other goods. The undertaking responsible fordischarge is generally liable to pay that compensation.

11.

    Point 5 of the Memorandum provides that 70% of the costs in respect of dischargeand transport must be paid before arrival of the ship, on the basis of the quantitiestransported.

12.

    Point 6 provides that the balance of 30%, together with demurrage and dispatch,will be calculated by the Commission on the basis of 'time sheets‘ establishedbefore departure of the ship and signed by the captain and the port authorities ofPoti or Batami. No demurrage or dispatch are to be paid directly to the ports.

13.

    Point 9 provides that dispatch and demurrage are to be calculated on the basis ofthe following factors:

—    working hours from Monday 8 a.m. to Friday 6 p.m. on the basis of 24hours per day without interruption;

—    periods of rain are to be deducted from the time elapsed;

—    once the agreed period for discharge has expired, periods of rain and bankholidays are no longer taken into account;

—    the daily discharge rates taken into account for each port are as follows:

    'bulk wheat — vacuvator‘            1 300 tonnes

    'grab‘                        2 500 tonnes

    'big bags/pallets‘                 350 tonnes

    'unpalletised sacks and cartons‘         250 tonnes.

14.

    Point 7 provides that the operator — in this case the applicant — is to pay theamount referred to in Point 6 within 15 days of notification by the Commission.Proof of payment must be sent to the Commission.

15.

    The goods were discharged in the port of Batumi between 8 and 15 February 1996inclusive.

16.

    On 6 May 1996 the Commission faxed to the applicant a detailed statement of thecosts to be paid to the Georgian authorities, specifying that USD 21 967.19 waspayable in respect of dispatch money. A Commission document entitled 'Port ofBatumi time sheet — dispatch (demurrage calculation)‘ was attached to that fax andcontained all the information necessary for calculating the dispatch money payable. In particular it indicated the name of the ship to be discharged, its tonnage, theagreed discharge rate, the date of arrival of the ship, the time necessary fordischarge, the daily dispatch rate and the total amount payable in respect ofdispatch money.

17.

    Between 10 May and 25 July 1996, the date of the Commission's last fax, theapplicant and the Commission exchanged a number of letters and faxes in whichthe applicant disputed that it was required to pay the dispatch money, whilst theCommission considered that it was payable by virtue of Article 10(5) of RegulationNo 2009/95.

18.

    In its fax of 25 July 1996 the Commission rejected the applicant's offer to resolvethe matter amicably by stating that the amount payable was not open tonegotiation.

19.

    On 26 July 1996, in order to avoid forfeiting its security, the applicant paid thedispatch money.

Case T-151/96

20.

    On 12 March 1996 the Commission adopted Regulation (EC) No 449/96 on thetransport for the free supply to Armenia and Azerbaijan of fruit juice, fruit jamsand common wheat flour (OJ 1996 L 62, p. 4, hereinafter 'Regulation No 449/96‘).

21.

    That regulation provided for a tendering procedure for the supply costs of 3 800tonnes of fruit juice, fruit jams and common wheat flour.

22.

    By decision of 27 March 1996 the Commission allocated the transport of that lotto the applicant, which was notified to that effect by registered letter dated 28March 1996. That letter was accompanied by the same extracts of theMemorandum as were annexed to the letter to the applicant in Case T-121/96 (seeparagraphs 7 and 8 above).

23.

    The applicant then entered into a charterparty with the shipowner on the COPbasis for shipment of the goods. It was expressly agreed that no dispatch would bepaid.

24.

    The goods were transported on three ships and discharged in the port of Batumibetween 15 and 31 May 1996 inclusive.

25.

    On 27 August 1996, the Commission sent to the applicant, by fax and by ordinarypost, a detailed statement of the costs to be paid to the Georgian authorities,including dispatch of USD 3 934.02, USD 1 705 and USD 375 respectively, givinga total of USD 6 014.02.

26.

    The applicant challenged that statement in a fax dated 29 August 1996. It none theless paid the dispatch money in order to avoid forfeiting its security.

Procedure and forms of order sought by the parties

27.

    By applications lodged at the Registry of the Court of First Instance on 5 Augustand 24 September 1996, the applicant brought two actions for annulment, whichwere registered under numbers T-121/96 and T-151/96 respectively.

28.

    By order of 9 December 1996 the President of the Fourth Chamber decided,pursuant to Article 50 of the Rules of Procedure, to join the two cases for thepurposes of the written and oral procedure.

29.

    The parties presented oral argument and replied to the Court's questions at thehearing on 5 June 1997.

30.

    Having heard the parties at the hearing, the Court of First Instance (FourthChamber) considers that the two cases should also be joined for the purposes ofthe judgment.

31.

    In Case T-121/96 the applicant claims that the Court should:

—    annul the Commission's decisions requiring the applicant to pay dispatch ofUSD 21 967.19 and rule that the applicant is not obliged to pay dispatchmoney to the Georgian authorities;

—    order the Commission of the European Communities to pay to the applicantthe sum of USD 21 967.19, together with interest calculated on the basis ofthe current statutory interest rate in Belgium of 8% per annum, as from 30July 1996;

—    order the Commission to pay the costs.

32.

    In Case T-151/96 the applicant claims that the Court should:

—    annul the Commission's decision of 27 August 1996 requiring the applicantto pay dispatch of USD 6 014.02 and, accordingly, rule that the applicant isnot obliged to pay dispatch money to the Georgian authorities;

—    order the Commission to pay to the applicant the sum of USD 6 014.02,together with interest calculated on the basis of the current statutoryinterest rate in Belgium of 7% per annum, as from 1 September 1996;

—    order the Commission to pay the costs.

33.

    The Commission contends that the Court should:

—    declare the application in Case T-121/96 inadmissible; alternatively, dismissit as unfounded;

—    dismiss the application in Case T-151/96 as unfounded;

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

The claim for a declaration that the application in Case T-121/96 is inadmissible

Arguments of the parties

34.

    In its rejoinder the Commission claims that the application in Case T-121/96 isinadmissible on the ground that it was lodged out of time. According to theCommission, the contested decision had already been notified to the applicant on6 May 1996, so that the subsequent decisions of the Commission which are referredto in the application do no more than confirm the contested decision. Theapplication, lodged on 5 August 1996, was therefore made out of time.

35.

    The Commission adds that the plea of inadmissibility, raised in the rejoinder, is notcontrary to Article 48(2) of the Rules of Procedure which prohibits the introductionof new pleas in law in the course of proceedings unless those pleas are based onmatters of law or of fact which come to light in the course of the procedure. According to the Commission, it is apparent from the case-law that absolute barsto proceeding with a case, for example, expiry of the period within whichproceedings may be brought, which are of such a nature that they can be raised atany time by the Court of its own motion, may be relied upon by the parties at anystage of the proceedings (see, in this respect, the Opinion of Advocate GeneralDarmon in Case 126/87 Del Plato v Commission [1989] ECR 643, points 9 and 10).

36.

    At the hearing, although the applicant confirmed that this action was brought underthe fourth subparagraph of Article 173 of the EC Treaty, it claimed that the two-month time-limit was observed. According to the applicant, time began to run inthis case only as from 4 June 1996, when the Commission notified it by a new faxof the precise content of the fax of 6 May 1996 and the reasons on which it wasbased, so that it was able to exercise its right of action with effect from thatmoment only (Joined Cases T-432/93, T-433/93 and T-434/93 Socurte and Others vCommission [1995] ECR II-503, paragraph 49).

37.

    In the alternative, the applicant further claimed at the hearing that its letter of 10May 1996, informing the Commission that it had entered into a COP charterpartyin order to carry out the transport entrusted to it, constituted a new fact. TheCommission subsequently adopted a new decision, notified to the applicant by faxon 4 June 1996, which took that new fact into account (see, a contrario, CaseT-514/93 Cobrecaf and Others v Commission [1995] ECR II-621, paragraph 47).

Findings of the Court

38.

    It is settled case-law that the time-limit prescribed for bringing actions underArticle 173 of the Treaty is a matter of public policy and is not subject to thediscretion of the parties or the Court, since it was established in order to ensurethat legal positions are clear and certain and to avoid any discrimination orarbitrary treatment in the administration of justice (see in particular, Case 152/85Misset v Council [1987] ECR 223, paragraph 11 and Case C-246/95 Coen [1997]ECR I-403, paragraph 21).

39.

    Under Article 113 of the Rules of Procedure, the Court of First Instance may atany time of its own motion consider whether there exists any absolute bar toproceeding with the case. Failure to observe the time-limit of two months forbringing actions laid down by the fifth subparagraph of Article 173 of the Treatyconstitutes an absolute bar to the admissibility of the application. In this case,therefore, the Court of First Instance must ascertain of its own motion whether thattime-limit was observed.

40.

    According to the fifth subparagraph of Article 173, the time-limit within which anaction for annulment may be brought begins to run when the decision is notifiedto the person to whom it is addressed. It is settled case-law that the purpose of thenotification is to enable the person concerned to become aware of the existence ofthe decision and the reasons given by the institution to justify it. In order to beduly notified, a decision must have been notified to the person to whom it isaddressed and that person must be in a position to examine it (see, on the latterpoint, the judgment of the Court of First Instance of 3 June 1997 in Case T-196/95H v Commission [1997] ECR II-0000, paragraph 31).

41.

    It is therefore necessary to consider whether the fax of 6 May 1996 constitutes adecision against which an action for annulment under Article 173 of the Treaty maybe brought and, if so, whether it was duly notified to the applicant.

42.

    To determine whether the fax of 6 May 1996 constitutes a decision, it is necessaryto examine whether it is capable of having any legal effect (Case 133/79 Sucrimexand Westzucker v Commission [1980] ECR 1299, paragraph 15).

43.

    In that respect, it is clear from the fax that the Commission, in accordance with theMemorandum, required the applicant to pay discharge and transport costsamounting to USD 89 940.87, including USD 21 967.19 in respect of dispatchmoney, to the Georgian authorities, within 20 days. The fax refers to the secondindent of Article 12(4)(b) of Regulation No 2009/95 according to which the securitylodged by the applicant is to be forfeited up to the amount payable together withtransport costs, if payment is not made within the prescribed period. That faxtherefore amounts to an act adversely affecting the applicant, of which theapplicant clearly became aware on 6 May 1996.

44.

    As to whether the applicant was able to examine the reasons on which the decisionat issue was based, two observations must be made.

45.

    First, the contested decision refers expressly to the Memorandum, the relevantextracts of which were received by the applicant. In that respect, the applicant'sfax of 10 May 1996 demonstrates that the applicant had identified the reasons givenby the Commission to justify its decision, since it challenges the legality of referringto the Memorandum in order to require it to pay dispatch money to the Georgianauthorities. Point 6 of the Memorandum, which concerns the calculation of thedischarge and transport costs by the Commission once the transport has been

effected, provides expressly that those costs are calculated by the Commissiontaking into account demurrage and dispatch.

46.

    Second, it should be noted that at no time, either before the application was lodgedor in the course of the proceedings before the Court, did the applicant challengethe material accuracy of the information set out in the 'time sheet —dispatch/demurrage calculation‘ annexed to the Commission's fax of 6 May 1996,as the applicant admitted at the hearing. That document contains all the detailedinformation necessary for calculation of the dispatch money payable in this case,such as the discharge rate (already referred to in point 9 of the Memorandum), thedaily dispatch rate, the tonnage of the ship to be discharged, the date of arrival ofthe ship, the dates and times of the commencement and completion of dischargetogether with a complete overview of the discharge operations, day-by-day. Theapplicant cannot therefore claim, as it did at the hearing, that in so far as it was notable to verify the authenticity of the information on that 'time sheet —dispatch/demurrage calculation‘ before it received a copy of the original as anannex to the Commission's letter of 17 July 1996, the contested decision wasincomplete and was therefore not capable of having legal effects for it.

47.

    It follows from the above that the fax of 6 May 1996 amounted to a decisioncapable of having legal effects for the applicant and that it was duly notified to it. From the moment it received the fax, the applicant was therefore able to exerciseits right to bring an action under Article 173 of the Treaty. It follows that theperiod of two months prescribed for bringing an action began to run on 6 May1996.

48.

    That conclusion is not altered by the fact that the Commission sent a fax on 4 June1996 replying to the applicant's fax of 10 May 1996. The fax of 4 June 1996, inwhich the Commission refused to reconsider its earlier decision contained in the faxof 6 May 1996, did not clearly alter the applicant's legal position compared withthat resulting from the previous decision since the Commission simply confirmedits previous decision without accepting any new factor capable of having mandatorylegal effects such as to affect the applicant's interests (see, in that respect, thejudgments in Cobrecaf, cited above, paragraph 45 and in Case C-480/93 P ZunisHolding and Others v Commission [1996] ECR I-1, paragraphs 11 to 14).

49.

    In that respect, the reference in the fax of 4 June 1996 to Article 10(5) ofRegulation No 2009/95 must be regarded as merely explaining, by reference backto the Memorandum, the legal basis on which the initial decision contained in thefax of 6 May 1996 had been founded. It does not, therefore, prove that theCommission reexamined the file following the applicant's fax of 10 May 1996. Furthermore, in its response, the Commission clearly states that the obligation topay dispatch arises exclusively from the regulations which apply in this case'independently of the contracts which the operators entered into with their shipperand which may provide otherwise‘. The existence of a COP charterparty entered

into by the applicant for the transport at issue, which was only notified to theCommission in its fax of 10 May 1996, does not therefore constitute a new fact. Since that charterparty was extraneous to the legal relationship between theCommission and the applicant, it was not capable of affecting the Commission'sfindings concerning the existence and the basis of the payment requirementimposed by the decision contained in the fax of 6 May 1996.

50.

    It follows that the fax of 4 June 1996 did not amount to a new decision with respectto the decision contained in the fax of 6 May 1996.

51.

    The two-month time-limit, extended by two days on account of distance for partiesestablished in Belgium by Article 102(2) of the Rules of Procedure, consequentlyexpired at midnight on 8 July 1996.

52.

    The application in Case T-121/96 on 5 August 1996 was therefore lodged out oftime and is consequently inadmissible.

53.

    Furthermore, since the pleas and arguments relating to the merits were identicalto those raised in Case T-151/96 this application would, in any event, have had tobe dismissed on its merits on the same grounds as those set out below in relationto that case.

The claim, in Case T-151/96, first, for annulment of the decision at issue and,second, for reimbursement by the Commission of the dispatch money paid,together with interest

54.

    In its reply the applicant pointed out that the application and the reply submittedin Case T-121/96 should be deemed to be reproduced in full in Case T-151/96. Forthat purpose, it annexed those two pleadings to its reply.

55.

    Accordingly, since the two cases have been joined, the arguments advanced by theapplicant in Case T-121/96 should be taken into account in deciding Case T-151/96.

56.

    It should be noted that the application is poorly structured and that the pleas reliedupon by the applicant in support of its application for annulment are not identifiedas such. However, the Commission was able to adopt a position on the merits andthe parties accepted the structure given to the arguments by the Judge-Rapporteurin the Report for the Hearing. The Court of First Instance is therefore in aposition to carry out its review.

First plea: infringement of Regulation No 2009/95 and the Memorandum

Arguments of the parties

57.

    The applicant considers that the decision requiring it to pay dispatch money ofUSD 6 014.02 amounts to an infringement of Regulation No 2009/95 and of theMemorandum, since neither of those measures specifies any rate on the basis ofwhich those costs could be calculated. The applicant cannot, therefore, beconsidered liable for the dispatch money payable to the Georgian authorities.

58.

    The Commission was in a position to determine the dispatch rate at the time whenthe tendering procedure was announced or, at least, when the contract wasawarded. The applicant claims that the Memorandum was concluded on 6 October1995, so that the dispatch rates could have been notified when the contract wasawarded on 27 March 1996. From the moment the applicant submitted its tender,the Commission was in possession of all the technical data concerning the vesselswhich would effect the transport awarded to the applicant, since the applicant wasrequired to provide that information by Article 6(1)(d)(3) of Regulation No2009/95. It is also clear from the Commission's practice that it was perfectly ableto determine the dispatch rate at the time when it adopted the regulationconcerning the tender procedure. In that respect, the applicant refers toCommission Regulation (EC) No 1416/96 of 22 July 1996 on the supply of commonwheat as food aid (OJ 1996 L 182, p. 1, hereinafter 'Regulation No 1416/96‘)which sets out dispatch rates in respect of a supply to Bangladesh.

59.

    The applicant also questions the reasons which led the Commission to disclose theinformation necessary for calculating the dispatch rate only in its defence, althoughit could have done so earlier in the tender procedure.

60.

    The Commission's argument according to which the applicant is required to paydispatch money, is tantamount to saying that the applicant should have predicteda rate when it chartered the vessel, although it did not know the amount whichwould finally be payable. On that point, the Commission cannot claim that theapplicant could have referred to the rates applied in previous food aid operationsunder Council Regulation (EC) No 1999/94 of 27 July 1994 on actions for the freesupply of agricultural products to the peoples of Georgia, Armenia, Azerbaijan,Kyrgyzstan and Tajikistan (OJ 1994 L 201, p. 1), since that transport took place in1994 and 1995, whilst the transport in this case occurred in 1996.

61.

    Finally, in its reply, the applicant alleges that, by prescribing a relatively lowdischarge rate in the Memorandum, and at the same time not stipulating thedispatch rate, the Commission indirectly adopted a provision allowing a form ofsubsidy to be paid to the recipient of food aid, in this case the Georgian authorities,by the tenderer, if the vessel was discharged swiftly. In such a situation it wouldbe unreasonable for the tenderer to pay dispatch money, particularly if the amountcharged is disproportionate to the value of the foodstuffs transported. Theapplicant claims that if this argument were to be regarded as a new plea, it wouldnone the less be admissible under Article 48(2) of the Rules of Procedure, since

it is based on a fact which was brought to the applicant's attention by the letter inAnnex I to the defence in Case T-121/96.

62.

    In response, the Commission states, first, that the mere fact that no dispatch ratewas prescribed in Regulation No 2009/95 or in the Memorandum is not sufficientto relieve the applicant of the obligation to pay the dispatch money, since it is clearfrom Article 10(5) of that regulation and points 5 and 9 of the Memorandum thatit was liable to pay such costs. In that respect, the Commission refers to Article 55of the Convention on Contracts for the International Sale of Goods according towhich, where the contract does not fix the price, the purchaser is required to paythe price generally charged at the time of the conclusion of the contract for suchgoods sold under comparable circumstances in the trade concerned.

63.

    In the light of those considerations, the Commission submits that the dispatchmoney claimed from the applicant should be examined in order to determinewhether it is reasonable. The dispatch rate finally agreed between the Commissionand the Georgian authorities cannot be considered to be unreasonable, since ratesof a comparable level had been agreed in respect of an earlier food aid operationwhere the undertakings were authorized to negotiate the dispatch rates individually. Furthermore, it is clear from point 18 of the first part of the charterparty which wasconcluded between the applicant and the owner of a ship chartered for thetransport at issue and which is annexed by the applicant to the application in CaseT-151/96, as well as from additional clause 23, that demurrage was fixed at USD2 200, so that the dispatch rate adopted by the Commission in that case, that is tosay USD 750 for the ship which had transported less than 1 000 tonnes and USD1 100 for the two other ships which had transported between 1 000 and 2 000tonnes, is not unreasonable, since dispatch money normally amounts to one-half ofdemurrage.

64.

    The Commission points out that the applicant does not dispute the reasonablenessof the dispatch rates which were applied, but merely asserts that no dispatch moneywas payable since those rates were not included in the extracts of theMemorandum provided when the contracts at issue were awarded. The defendantadds that no other undertaking has refused to pay dispatch money on the groundthat the rate was not known at that time.

65.

    Secondly, the Commission considers that its legal relationship with the applicantmust be distinguished from the relationship between the applicant and the ownerof the ship.

66.

    The relationship between the Commission and the applicant is governed only byRegulation No 2009/95 and the Memorandum. For example, Article 5(1) ofRegulation No 2009/95 provides that the Commission will pay a flat rate for eachtonne transported, without taking into account the actual price agreed between theapplicant and the shipowner. It is clear from those provisions that the applicantwas responsible for paying dispatch money. The Memorandum concluded with the

Georgian authorities envisaged that demurrage would be paid to undertakingscarrying out the transport. That was why they were only required to pay 70% ofthe discharge costs in advance, the balance of 30% being payable only afterdeduction of any demurrage on the basis of the actual delay in discharge. Inexchange, the Georgian authorities required that dispatch money be added to thebalance of 30% if discharge was completed rapidly. That twofold requirementexplains the wording of point 6 of the Memorandum, according to which dispatchand demurrage may not be paid directly to the ports and the balance is to becalculated together with demurrage and dispatch. It is also clear from point 2 ofthe Memorandum that the Georgian authorities, and not the applicant in itscapacity as charterer, were responsible for discharge. That being so, in contrast tothe normal situation, those authorities, and not the applicant, were required to paydemurrage or permitted to claim dispatch money.

67.

    In contrast, the relationship between the applicant and the owner of the charteredships is governed by the charterparties entered into by them. Clause No 23 of thecharterparty annexed to the application in Case T-151/96 thus provided that nodispatch money was payable, meaning that, in contrast to the normal situation, theshipowner was not required to pay such costs to the applicant (the charterer). However, those charterparties do not affect the obligation — imposed on theapplicant by Regulation No 2009/95 and the Memorandum, in its capacity assuccessful tenderer for the transport contract at issue, — to pay dispatch money tothe Georgian authorities, which were responsible for discharge in its stead. Theyare intended only to govern the relationship between the applicant and theshipowner. The Commission also claims that the applicant could have drafted thecharterparties with reference to the Memorandum, the content of which it wasfamiliar with. By agreeing that the shipowner was not required to pay dispatchmoney, it deliberately exposed itself to the risk that it would have to pay dispatchmoney itself.

68.

    Thirdly, the Commission notes that it was not able to determine the exact amountof the dispatch money at the time when the Memorandum was signed, since thatamount depended on a number of factors which were not certain at that time, suchas the port of discharge, the tonnage of the ship, the state of the ship and theevolution of prices in the shipping market. The applicable rates were onlyestablished to the extent that information was available. Furthermore, it was notpossible to determine the tonnage of the ships used on the basis of the informationset out in the applicant's tenders since those tenders indicated only the type of shipand did not specify either the number of ships to be used or their tonnage. Incontrast, in Regulation No 1416/96, to which the applicant refers, the Commissionwas able to determine the tonnage of the ships to be used for the transport at issueand, consequently, to set the applicable dispatch rate in advance. The Commissionalso notes that the applicant never enquired as to the dispatch rate which wouldapply and therefore apparently did not object to the fact that that rate was notexpressly mentioned in the documents sent to it.

69.

    Fourthly, the Commission considers that the argument according to which thepayment of dispatch money is a form of subsidy to the Georgian authoritiesamounts to a new plea which is inadmissible under Article 48(2) of the Rules ofProcedure, in so far as it is based on two facts, concerning calculation of thedispatch money payable, which were already known to the applicant before thisaction was brought. The Commission stresses that the discharge rate was specifiedin point 9 of the extracts of the Memorandum provided when the contracts at issuewere awarded and that the dispatch rate was determined in the contested decisions. In any event, the discharge rate was not excessively low taking into account thenature of the goods transported and the facilities available in Georgia.

Findings of the Court

70.

    The relationship between the applicant and the Commission is governed exclusivelyby Council Regulation No 1975/95, Regulations Nos 2009/95 and 449/96 adoptedby the Commission within the framework established by that regulation, thedecision of 27 March 1996 and the Memorandum concluded between theCommission and the Georgian authorities, the relevant extracts of which wereattached to the Commission's letter of 28 March 1996.

71.

    It is clear from those measures that undertakings which submitted successfultenders for the transport were required to pay dispatch money to the Georgianauthorities, where necessary.

72.

    Article 10(5) of Regulation 2009/95 thus provides that payments in respect ofunloading and transport as well as demurrage and dispatch to be effected in favourof Georgian administrations must be executed in accordance with the terms andconditions fixed in the Memorandum. That provision not only specified that theMemorandum is to govern the terms and conditions of payments relating topayment of dispatch money, but also clearly sets out the principle that dispatchmoney is to be paid to the Georgian authorities if necessary, by use of the words'payment in respect of [...] dispatch to be effected in favour of Georgianadministrations‘.

73.

    The procedures for payment are prescribed in the Memorandum as follows. Point5 provides that the undertaking to which the transport contract is awarded mustpay 70% of the transport and discharge costs, calculated on the basis of thequantities transported, before arrival of the ship in the Georgian port. Point 6provides that the balance of 30% together with demurrage and dispatch is to becalculated by the Commission after discharge on the basis of the 'time sheets‘prepared by the captain of the ship and the port authorities together. That pointalso provides that no demurrage or dispatch may be paid directly to the portauthorities. Finally, point 7 provides that the operator must pay the amountreferred to in point 6 within 15 days.

74.

    It is therefore clear from points 5, 6 and 7 of the Memorandum that the calculationmade by the Commission after discharge of the ship by the Georgian authoritiescomprises not only the balance of the discharge costs, but also, where appropriate,the dispatch money and that the undertaking responsible for the transport must paythat money.

75.

    The fact that it entered into a charterparty with a shipowner which precluded thepayment of any dispatch by the shipowner does not in any way affect theapplicant's legal position vis-à-vis the Commission, since that charterparty isintended only to govern the relationship between the applicant and the shipowner. The 'no dispatch‘ clause means only that the shipowner is not required to paydispatch money to the applicant, even if the applicant becomes liable for suchpayment to the Georgian authorities under Article 10(5) of Regulation No 2009/95and the Memorandum.

76.

    As it acknowledged at the hearing, the applicant therefore took a risk by acceptingthe 'no dispatch‘ clause. The applicant claims that it accepted that risk becauseit believed that the fact that no precise dispatch rate was notified to it when thecontract was awarded meant that it could not be required to pay dispatch moneyto the Georgian authorities under any circumstances. However, that belief iserroneous. The fact that no dispatch rate was notified to the applicant when thecontract was awarded does not relieve the applicant of such an obligation. Itshould be recalled that the Memorandum clearly required the successful tendererto pay dispatch money but did not dwell on determining the extent of thatobligation by fixing the rate which would apply. Furthermore, no other provisionof the regulations governing the relationship between the Commission and theapplicant requires the Commission to determine the dispatch rate before or at thetime of awarding the various contracts of carriage. In those circumstances, the factthat the applicable rates were not notified at the time when the contract wasawarded does not alter the fact that the applicant is required to pay dispatchmoney.

77.

    Furthermore, the exact amount payable in respect of dispatch can only bedetermined after the ship has been discharged, meaning that it would be hazardousto determine that amount before discharge even if the applicable rates were knownin advance. When, as in this case, those rates are not known at the time when thecontract is awarded, the successful tenderer must anticipate that a reasonable ratewill be applied.

78.

    On that point, as it again confirmed at the hearing, the applicant does not disputethe reasonableness of the dispatch rate which was finally applied.

79.

    In any event, if problems arose, the applicant — which was aware from the timewhen it submitted its tender on the basis of Article 10(5) of Regulation No 2009/95and, even more specifically, on receiving the extracts of the Memorandum when the

contract at issue was awarded, that dispatch money might be payable — could haveasked the Commission for the exact rates, in order better to assess the risk to whichit exposed itself by entering into charterparties containing a 'no dispatch‘ clause.

80.

    The applicant's argument, in its rejoinder, that a hidden subsidy was granted to theGeorgian authorities by virtue of the amount of the dispatch money payable, is anew plea which is inadmissible under Article 48(2) of the Rules of Procedure in sofar as it is based on two facts which were already known to the applicant at thetime the application was lodged. The calculation of the amount of dispatch payabledepends on the stipulated discharge rate and the dispatch rate applied. The formeris set out in point 9 of the extracts of the Memorandum which were annexed to theapplications in the two cases now before the Court, and the latter is referred to ineach of the decisions against which they have been brought and which are alsoannexed to those applications.

81.

    It follows from the above that the first plea must be dismissed.

Second plea: the calculation of the dispatch money payable is not clear

Arguments of the parties

82.

    The applicant also claims that the calculation of the amounts payable, containedin the contested decision, was not clear.

83.

    The Commission replies that the method of calculating the dispatch money payableis apparent from the documents entitled 'time sheet — dispatch/demurragecalculation‘ and that the various calculations are not in any way erroneous.

Findings of the Court

84.

    The calculation of the dispatch money payable is clearly shown in the documentsentitled 'time sheet — dispatch/demurrage calculation‘ which the Commission sentto the applicant as an integral part of the contested decision.

85.

    At the hearing, in response to a question from the Court, the applicant stated that,in actual fact, the alleged lack of clarity related exclusively to the fact that thedispatch rates applied in the calculations were not previously known to it. Theconclusion to be drawn from this is that the calculations were perfectly clear to theapplicant but that what in fact it is doing, by means of the second plea, is to disputeonce again the very principle that it is required to pay any dispatch money whichmay fall due, which is precisely the object of the arguments developed in thecontext of the first plea.

86.

    It follows that, like the first plea, the second plea must be dismissed, particularlysince the applicant has in no way denied that all the calculations are correct or thatthey are based on the application of reasonable dispatch rates.

87.

    It follows from all the above that the claim for annulment of the decision at issuemust be dismissed in its entirety. Consequently, the claim for reimbursement bythe Commission of the dispatch money paid, together with interest, no longer hasany purpose.

Costs

88.

    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs, if they have been applied for in the successful party'spleadings. Since the applicant has been unsuccessful and the Commission hasapplied for costs, the applicant must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby:

1.    Orders that Cases T-121/96 and T-151/96 be joined for the purposes ofjudgment;

2.    Dismisses the application in Case T-121/96 as inadmissible;

3.    Dismisses the application in Case T-151/96;

4.    Orders the applicant to pay the costs.

Lenaerts                Lindh                Cooke

Delivered in open court in Luxembourg on 18 September 1997.

H. Jung

K. Lenaerts

Registrar

President

1: Language of the case: Dutch.

ECR