JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

14 October 1999 (1)

(Common agricultural policy — Food aid — Tendering procedure — Payment ofsuccessful tenderers in fruit other than those specified in the notice of invitationto tender)

In Joined Cases T-191/96 and T-106/97,

CAS Succhi di Frutta SpA, a company incorporated under Italian law, establishedin Castagnaro, Italy, represented by Alberto Miele, of the Padua Bar, AntonioTizzano and Gian Michele Roberti, of the Naples Bar, and Carlo Scarpa, of theVenice Bar,

applicant,

v

Commission of the European Communities, represented by Paolo Ziotti, of itsLegal Service, acting as Agent, assisted by Alberto Dal Ferro, of the Vicenza Bar,with an address for service in Luxembourg at the office of Carlos Gómez de laCruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of Commission Decisions C (96) 2208 of 6September 1996 (Case T-191/96) amending its decision of 14 June 1996, andC (96) 1916 of 22 July 1996 (Case T-106/97) on the supply of fruit juice and fruitjams intended for the people of Armenia and Azerbaijan provided for inRegulation (EC) No 228/96,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of: A. Potocki, President, C.W. Bellamy and A.W.H. Meij, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 10 February1999,

gives the following

Judgment

Legal framework, facts and procedure

1.

    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). The first two recitalsin the preamble to that regulation state that 'it is advisable to supply Georgia,Armenia, Azerbaijan, Kyrgyzstan and Tajikistan with agricultural products in orderto improve the food supply situation, taking into account the diversity of localsituations without compromising development towards supplies according to marketrules‘, and that 'the Community has agricultural products in stock followingintervention measures and it is advisable, exceptionally, to dispose, in priority, ofthese products in carrying out the action envisaged‘.

2.

    Article 1 of Regulation No 1975/95 states:

'Under the conditions laid down by this Regulation, measures shall be taken forthe free supply to Georgia, Armenia, Azerbaijan, Kyrgyzstan and Tajikistan ofagricultural products, to be determined, which are available as a result ofintervention measures; in the case where the products are temporarily not availablein intervention they may be mobilised on the Community market in order to meetthe commitments of the Community.‘

3.

    Article 2 of Regulation No 1975/95 provides:

'1. The products shall be supplied unprocessed or in processed form.

2. The measures may also relate to foodstuffs available or which may be obtainedon the market by payment with products coming from intervention stocks andbelonging to the same group of products.

3. The supply costs, including transport and, where applicable, processing costs,shall be determined by invitation to tender or, for reasons connected with urgencyor with difficulties of transportation, by direct agreement procedure.

...‘

4.

    Subsequently, the Commission adopted Regulation (EC) No 2009/95 of 18 August1995 laying down detailed rules for the free supply of agricultural products held inintervention stocks to Georgia, Armenia, Azerbaijan, Kyrgyzstan and Tajikistanpursuant to Regulation No 1975/95 (OJ 1995 L 196, p. 4).

5.

    The second recital in the preamble to Regulation No 2009/95 states:

'... free supplies are foreseen in the form of agricultural products from interventionstocks without further processing and of products not available from interventionstocks but belonging to the same group of products; ... therefore, specific detailedrules should be laid down for supplies of processed products; ... provisions shouldbe made in particular for such supplies to be paid for in raw materials fromintervention stocks‘.

6.

    Article 2(2) of Regulation No 2009/95 provides:

'The invitation to tender may relate to the quantity of products to be removedphysically from intervention stocks as payment for the supply of processed productsfrom the same group of products to a delivery stage to be determined in the noticeof invitation to tender‘.

7.

    According to Article 6(1)(e)(1) of Regulation No 2009/95, where Article 2(2)applies, tenders are only valid where they indicate 'the proposed quantity ofproduct, expressed in tonnes (net weight), to be exchanged for one tonne (net) offinished product under the conditions and to the delivery stage specified in theinvitation to tender‘.

8.

    Under Article 6(2) of Regulation No 2009/95:

'Tenders submitted which are not in accordance with the conditions of the presentArticle, or which only conform partially to the conditions of the tender Regulationor which contain conditions other than those laid down in this Regulation may berejected.‘

9.

    According to Article 15(1) of Regulation No 2009/95, notices of invitation to tenderare to specify in particular:

'—    the additional terms and conditions,

—    the lots ...,

...

—    the main physical and technical characteristics of the various lots,

...‘.

10.

    According to Article 15(2) of Regulation No 2009/95, in the case of invitations totender as provided for in Article 2(2), the notice is to specify in particular:

'—    the lot or group of lots to be taken over in payment for the supply,

—    the characteristics of the processed product to be supplied, namely type,quantity, quality, packaging, etc.‘.

11.

    The Commission then adopted Regulation (EC) No 228/96 of 7 February 1996 onthe supply of fruit juice and fruit jams intended for the people of Armenia andAzerbaijan (OJ 1996 L 30, p. 18).

12.

    The first and second recitals in the preamble to Regulation No 228/96 state:

'... Regulation (EC) No 1975/95 provides that actions for the free supply ofagricultural products may relate to foodstuffs available or capable of being obtainedon the market by means of payment with products available following interventionmeasures;

... to respond to requests from the beneficiary States for fruit juices and fruit jams,it is appropriate to open a tender to determine the most advantageous conditionsfor the supply of such products and to provide the payment of the successfultenderer with fruit withdrawn from the market following the withdrawal operationsin application of Articles 15 and 15A of Council Regulation (EEC) No 1035/72 of18 May 1972 on the common organisation of the market in fruit and vegetables (OJ1972 L 118, p. 1), as last amended by Commission Regulation (EC) No 1363/95(OJ 1995 L 132, p. 8).‘

13.

    According to Article 1 of Regulation No 228/96:

'A tendering procedure is hereby initiated for the supply of a maximum of 1 000tonnes of fruit juice, 1 000 tonnes of concentrated fruit juice and 1 000 tonnes offruit jams as indicated in Annex I, in accordance with the provisions of Regulation

(EC) No 2009/95, and in particular Article 2(2) thereof and the specific provisionsof the present Regulation.‘

14.

    Annex I to Regulation No 228/96 contains the following details:

Lot No 1    Product to be supplied: 500 tonnes (net) of apple juice

        Product to be withdrawn: Apples

Lot No 2    Product to be supplied: 500 tonnes (net) of apple juice concentratedto 50%

        Product to be withdrawn: Apples

Lot No 3    Product to be supplied: 500 tonnes (net) of orange juice

        Product to be withdrawn: Oranges

Lot No 4    Product to be supplied: 500 tonnes (net) of orange juice concentratedto 50%

        Product to be withdrawn: Oranges

Lot No 5    Product to be supplied: 500 tonnes net of diverse fruit jams

        Product to be withdrawn: Apples

Lot No 6    Product to be supplied: 500 tonnes net of diverse fruit jams

        Product to be withdrawn: Oranges

For each of the lots, the delivery date is fixed at 20 March 1996.

15.

    By letter of 15 February 1996, the applicant submitted a tender for Lots Nos 1 and2, offering to withdraw 12 500 tonnes and 25 000 tonnes of apples respectively aspayment for the supply of its products for those two lots.

16.

    Trento Frutta SpA ('Trento Frutta‘) and Loma GmbH ('Loma‘) offered,respectively, to withdraw 8 000 tonnes of apples for Lot No 1 and 13 500 tonnesof apples for Lot No 2. In addition, Trento Frutta stated that, in the event of therenot being enough apples, it was prepared to accept peaches.

17.

    On 6 March 1996, the Commission sent to the Azienda di Stato per gli Interventinel Mercato Agricolo (the Italian intervention agency, 'AIMA‘), with a copy toTrento Frutta, Memorandum No 10663 stating that it had awarded Lots Nos 1, 3,4, 5 and 6 to Trento Frutta. According to that memorandum, Trento Frutta wouldreceive as payment, in priority, the following quantities of fruit withdrawn from themarket:

Lot No 1    8 000 tonnes of apples or, alternatively, 8 000 tonnes of peaches;

Lot No 3    20 000 tonnes of oranges or, alternatively, 8 500 tonnes of apples or8 500 tonnes of peaches;

Lot No 4    32 000 tonnes of oranges or, alternatively, 13 000 tonnes of apples or13 000 tonnes of peaches;

Lot No 5    18 000 tonnes of apples or, alternatively, 18 000 tonnes of peaches;

Lot No 6    45 000 tonnes of oranges or, alternatively, 18 000 tonnes of apples or18 000 tonnes of peaches.

18.

    On 13 March 1996, the Commission sent Memorandum No 11832 to AIMAinforming it that it had awarded Lot No 2 to Loma in return for the withdrawal of13 500 tonnes of apples.

19.

    Pursuant to Regulation No 228/96, AIMA took the measures necessary for givingeffect to Commission Memoranda Nos 10663 and 11832, cited above, by means ofCircular No 93/96 of 21 March 1996 which reproduced their content.

20.

    On 14 June 1996, the Commission adopted Decision C (96) 1453 on the supply offruit juice and fruit jams intended for the people of Armenia and Azerbaijan,pursuant to Regulation No 228/96 ('the Decision of 14 June 1996‘). According tothe second recital in the preamble to that decision, since the award, the quantitiesof products in question withdrawn from the market had been negligible incomparison with the quantities required, although the withdrawal season wasvirtually over. It was therefore necessary, in order to complete that operation, toallow the successful tenderers wishing to do so to take as payment, in place ofapples and oranges, other products withdrawn from the markets in predeterminedquantities reflecting the processing equivalence of the products in question.

21.

    Article 1 of the Decision of 14 June 1996 provides that the products withdrawnfrom the market be made available to the successful tenderers (namely TrentoFrutta and Loma) at their request, according to the following coefficients ofequivalence:

(a)    1 tonne of peaches for 1 tonne of apples,

(b)    0.667 tonne of apricots for 1 tonne of apples,

(c)    0.407 tonne of peaches for 1 tonne of oranges,

(d)    0.270 tonne of apricots for 1 tonne of oranges.

22.

    That decision was addressed to the Italian Republic, the French Republic, theHellenic Republic and the Kingdom of Spain.

23.

    On 22 July 1996 the Commission adopted Decision C (96) 1916 on the supply offruit juice and fruit jams intended for the people of Armenia and Azerbaijan,pursuant to Regulation No 228/96 ('the Decision of 22 July 1996‘). According to

the third recital in the preamble to that decision, the quantity of peaches andapricots available would not be sufficient to complete the operation and it wasappropriate to allow, in addition, the substitution of nectarines for the apples to bewithdrawn by the successful tenderers.

24.

    Article 1 of the Decision of 22 July 1996 provides that the products withdrawn fromthe market are made available to Trento Frutta and Loma, at their request,according to the coefficient of equivalence of 1.4 tonnes of nectarines for 1 tonneof apples.

25.

    That decision was addressed to the Italian Republic.

26.

    By action brought before the Tribunale Amministrativo Regionale (RegionalAdministrative Court), Lazio, and notified to AIMA on 24 July 1996, the applicantsought the annulment of AIMA's Circular No 93/96, cited above.

27.

    On 26 July 1996, at the meeting organised at its request with the staff ofCommission Directorate-General VI-Agriculture (DG VI), the applicant presentedits objections to the substitution, authorised by the Commission, of other fruit forapples and oranges and obtained a copy of the Decision of 14 June 1996.

28.

    On 2 August 1996, the applicant sent to the Commission Technical Report No 94prepared by the Dipartimento Territorio e Sistemi Agro-Forestali (Department ofLand and Forestry Management) of the University of Padua on the coefficients ofeconomic equivalence of certain fruit to be used for processing into juice.

29.

    On 6 September 1996, the Commission adopted Decision C (96) 2208 amendingthe Decision of 14 June 1996 on the supply of fruit juice and fruit jams intendedfor the people of Armenia and Azerbaijan, pursuant to Regulation No 228/96 ('theDecision of 6 September 1996‘). According to the second recital in the preambleto that decision, in order to bring about a more balanced substitution of products,over the whole withdrawal period for peaches, between the apples and orangesused for the supply of fruit juice to the people of the Caucasus, on the one hand,and the peaches withdrawn from the market to pay for those supplies, on the other,it was appropriate to amend the coefficients established in the Decision of 14 June1996. The new coefficients were to be applied only to products which had not yetbeen withdrawn by the successful tenderers as payment for supplies.

30.

    Under Article 1 of the Decision of 6 September 1996, Article 1(a) and (c) of theDecision of 14 June 1996 were amended as follows:

'(a)    0.914 tonne of peaches for 1 tonne of apples,

...

(c)    0.372 tonne of peaches for 1 tonne of oranges.‘

31.

    That decision was addressed to the Italian Republic, the French Republic, theHellenic Republic and the Kingdom of Spain.

32.

    By application lodged at the Registry of the Court of First Instance on 25November 1996, the applicant brought an action for annulment of the Decision of6 September 1996. That case was registered under number T-191/96.

33.

    By order of 26 February 1997 in Case T-191/96 R CAS Succhi di Frutta vCommission [1997] ECR II-211, the President of the Court of First Instancedismissed an application for suspension of the operation of the Decision of 6September 1996, made by the applicant on 16 January 1997.

34.

    By application lodged at the Registry of the Court of First Instance on 9 April1997, the applicant brought an action for annulment of the Decision of 22 July1996, claiming that it had received a copy of that decision only on 30 January 1997,in the context of the proceedings for interim relief. That case was registered undernumber T-106/97.

35.

    By order of 20 March 1998, the President of the Second Chamber of the Court ofFirst Instance dismissed an application by Allione Industria Alimentare SpA forleave to intervene in support of the form of order sought by the applicant in CaseT-191/96 CAS Succhi di Frutta v Commission [1998] ECR II-575.

36.

    By order of 14 October 1998, the President of the Second Chamber of the Courtof First Instance ordered that Cases T-191/96 and T-106/97 be joined for thepurposes of the oral procedure and the judgment.

37.

    Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(Second Chamber) decided to open the oral procedure without taking anymeasures of preparatory inquiry. However, it requested the Commission to indicatein writing before the hearing what had been the state of apple stocks available tothe intervention agencies at the material time. The Commission complied with thatrequest within the time-limit prescribed. The hearing took place on 10 February1999.

Forms of order

38.

    In Case T-191/96, the applicant claims that the Court should:

—    annul the Decision of 6 September 1996 amending the Decision of 14 June1996;

—    order the Commission to pay the costs.

39.

    In Case T-106/97, the applicant claims that the Court should:

—    annul the Decision of 22 July 1996;

—    order the Commission to pay the costs.

40.

    In these two cases, the Commission contends that the Court should:

—    dismiss the application as inadmissible or, in the alternative, unfounded;

—    order the applicant to pay the costs.

Case T-191/96

Admissibility

Arguments of the parties

41.

    The Commission contends that the application is inadmissible on two grounds: theapplicant is not directly and individually concerned by the Decision of 6 September1996, and it has no interest in obtaining its annulment.

42.

    The Commission points out first of all that the applicant does not dispute theaward of the lots for which it submitted a tender. It contends that the act contestedin this case did not provide for the replacement of apples and oranges by peaches,but merely amended the coefficients of equivalence between those fruits, thatsubstitution having been authorised by the Decision of 14 June 1996.

43.

    The fact that those coefficients of equivalence may be more or less favourable tothe successful tenderers can be of individual concern only to them. The applicant'ssituation, in relation to the Decision of 6 September 1996, is not in any waydifferent from that of any operator in the sector concerned, other than thesuccessful tenderers for the contract (see, in particular, order in Case T-183/94Cantina Cooperativa fra Produttori Vitivinicoli di Torre di Mosto and Others vCommission [1995] ECR II-1941, paragraph 49).

44.

    The case-law on challenging a tendering procedure, in particular, Case 92/78Simmenthal v Commission [1979] ECR 777, is not relevant. The Decision of 6September 1996 is a measure independent of the notice of invitation to tender,adopted after the award of the contract, which it does not amend in any way. Thesuccessful tenderers are indeed those tenderers who offered to accept the smallestquantity of apples as payment. In those circumstances, the fact that the applicanttook part in the tendering procedure in question does not confer on it any specialattribute, as compared with any other third person, in relation to the Decision of6 September 1996.

45.

    Furthermore, the mere fact that a measure may exert an influence on thecompetitive relationships existing on the market in question is not sufficient toenable any trader in any form of competitive relationship with the addressee of themeasure to be regarded as directly and individually concerned by that measure(Joined Cases 10/68 and 18/68 Eridania Zuccherifici and Others v Commission[1969] ECR 459, paragraph 7).

46.

    Moreover, since the contested decision amended the coefficients of equivalencefixed in the Decision of 14 June 1996 along the lines the applicant wished, it hadno interest in requesting the annulment of that decision since the effect of thatannulment would be to reinstate the previous coefficients (see orders in CaseT-6/95 R Cantine dei Colli Berici v Commission [1995] ECR II-647, paragraph 29;and in Case T-6/95 Cantine dei Colli Berici v Commission, not published in theECR, paragraph 46).

47.

    The Commission states, finally, that the arguments put forward by the applicantcould have been directed against the Decision of 14 June 1996, which was moreunfavourable to it, but which it did not challenge within the prescribed time.

48.

    The applicant claims that it is directly concerned by the contested decision. It isalso individually concerned by the contested decision, first, in its capacity astenderer (Simmenthal v Commission, paragraphs 25 and 26) and, second, by reasonof the extremely serious economic loss that it has suffered because of the allocationto competitors, as payment for their supplies, of substitute fruits in excessivequantities. It points out that the contested decision was adopted after theCommission had, at its request, fully reconsidered the situation.

49.

    The applicant also claims that it retains an interest in seeking the annulment of thecontested decision, even if the award of the contract for the benefit of itscompetitors has been fully implemented (Simmenthal v Commission, paragraph 32).

Findings of the Court

50.

    The fourth paragraph of Article 173 of the EC Treaty (now, after amendment,Article 230 EC), confers on natural or legal persons the right to bring an action forannulment against decisions addressed to them and against decisions which,although in the form of a regulation or a decision addressed to another person, areof direct and individual concern to them.

51.

    It is settled case-law that persons other than those to whom a decision is addressedmay claim to be individually concerned, for the purpose of that provision, only ifthe decision at issue affects them by reason of certain attributes peculiar to themor by reason of factual circumstances in which they are distinguished from all otherpersons, and by virtue of those factors distinguishes them individually in the sameway as the person addressed (judgment in Case 25/62 Plaumann v Commission[1963] ECR 95; see, for example, judgment in Case T-86/96 Arbeitsgemeinschaft

Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd Fluggesellschaft v Commission[1999] ECR II-0000, paragraph 42; and the case-law cited therein).

52.

    It is common ground in this case that the applicant took part in the bidding forLots Nos 1 and 2, and that Lot No 1 was awarded to Trento Frutta.

53.

    Moreover, the Commission does not dispute the fact that its Memorandum No10663 of 6 March 1996, cited above, contains elements which do not correspondto the conditions laid down in the notice of invitation to tender provided for byRegulation No 228/96, in so far as it provides, inter alia, for the substitution ofpeaches for apples and oranges as the means of payment for the supplies fromTrento Frutta. That memorandum therefore amends the arrangements for paymentprescribed for the different lots.

54.

    The amendment of the arrangements for payment prescribed for the different lotswas confirmed by the Decision of 14 June 1996 with regard to all the successfultenderers. Subsequently, the applicant asked the Commission to reconsider thatdecision. For that purpose, a meeting between the staff of DG VI and the applicanttook place on 26 July 1996, following which the applicant sent to the CommissionTechnical Report No 94 (paragraphs 27 to 28 above).

55.

    In the light of the new information brought to its attention in this way and of areconsideration of the situation as a whole, in particular of the level of the priceof peaches on the Community market recorded by its staff in mid-August 1996 (seethe DG VI working document, Annex 11 to the defence), the Commission adoptedthe contested Decision of 6 September 1996, laying down new coefficients ofequivalence between peaches, on the one hand, and apples and oranges, on theother.

56.

    Consequently, the contested decision must be regarded as an independent decision,taken following a request from the applicant, on the basis of new information, andit amends the conditions of the invitation to tender in that it provides, withdifferent coefficients of equivalence, for the substitution of peaches for apples andoranges as a means of payment to the successful tenderers in spite of the contactswhich took place in the interim between the parties.

57.

    In those circumstances, it must be held that the applicant is individually concernedby the contested decision. It is concerned, first, in its capacity as unsuccessfultenderer in so far as one of the important conditions of the invitation to tender —that concerning the means of payment for the supplies at issue — was lateramended by the Commission. Such a tenderer is not individually concerned merelyby the Commission decision which determines the fate, be it favourable orunfavourable, of each of the tenders submitted in answer to the notice of invitationto tender (Simmenthal v Commission, paragraph 25). It also retains an individualinterest in ensuring that the conditions of the notice of invitation to tender are

complied with at the stage when the award itself is implemented. The fact that theCommission did not point out in the notice of invitation to tender the possibility forsuccessful tenderers to obtain fruit other than those prescribed as payment for theirsupplies denied the applicant the chance of submitting a tender different from thatwhich it had submitted, and of thus having the same opportunity as Trento Frutta.

58.

    Second, in the particular circumstances of the case, the applicant is individuallyconcerned by the contested decision because it was adopted after a reconsiderationof the situation as a whole, undertaken at the applicant's request and in the light,in particular, of the additional information which it presented to the Commission.

59.

    The applicant is also directly concerned by the contested decision since theCommission did not leave any margin of discretion to the national authorities in thematter of the methods for implementing that decision (see, for example, thejudgment in Joined Cases 41/70, 42/70, 43/70, 44/70 International Fruit Companyand Others v Commission [1971] ECR 411, paragraphs 25 to 28).

60.

    Furthermore, the argument based on the fact that the applicant did not challengethe Decision of 14 June 1996 within the prescribed time-limit must be rejected,since the contested decision cannot be regarded as a measure which is merelyconfirmatory of that decision. As stated above, the Commission agreed, at theapplicant's request, to reconsider the Decision of 14 June 1996, and the contesteddecision was adopted following that reconsideration. Furthermore, the contesteddecision lays down different coefficients of equivalence and is based on newevidence. In those circumstances, the applicant's action cannot be declaredinadmissible on that basis (see judgments in Case T-82/92 Cortes Jimenez andOthers v Commission [1994] ECR-SC II-237, paragraph 14; Case T-331/94 IPK vCommission [1997] ECR II-1665, paragraph 24; Case T-130/96 Aquilino v Council[1998] ECR-SC II-1017, paragraph 34; and Case T-100/96 Vicente-Nuñez vCommission [1998] ECR-SC II-1779, paragraphs 37 to 42).

61.

    The argument according to which the applicant has no interest in bringingproceedings since the sole effect of annulling the contested decision would be toreinstate the coefficients laid down in the Decision of 14 June 1996, which are lessfavourable to the applicant, must also be rejected.

62.

    It should not be presumed, for the purpose of determining whether the presentaction is admissible, that a judgment annulling the Decision of 6 September 1996would have the effect merely of reviving the coefficients of equivalence laid downby the Decision of 14 June 1996, having regard, in particular, to the Commission'sobligation to take the necessary measures to comply with the present judgment inaccordance with Article 176 of the EC Treaty (now Article 233 EC) (see thejudgment in Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris v Commission[1988] ECR 2181, paragraphs 27 to 32).

63.

    In any event, it is clear from paragraph 32 of Simmenthal v Commission that, evenwhere a decision to award a contract has been fully implemented for the benefitof other competitors, a tenderer retains an interest in the annulment of such adecision; such interest consists either in the tenderer's being properly restored bythe Commission to his original position or in prompting the Commission to makesuitable amendments in the future to the system of invitations to tender if thatsystem is found to be incompatible with certain legal requirements. That case-lawis applicable to the present case, particularly since it is common ground that theoperations prescribed by the notice of invitation to tender at issue had not yet beenfully implemented at the time when the contested decision was adopted.

64.

    It follows that the application is admissible.

Substance

65.

    In support of its claim for the annulment of the Decision of 6 September 1996, theapplicant bases its case on seven pleas in law alleging: (1) infringement ofRegulation No 228/96 and breach of the principles of transparency and equaltreatment; (2) infringement of Regulations Nos 1975/95 and 2009/95; (3) misuse ofpowers; (4) manifest errors of assessment; (5) infringement of Articles 39 of the ECTreaty (now Article 33 EC) and 40(3) of the EC Treaty (now, after amendment,Article 34(3) EC) and of Regulation No 1035/72 of 18 May 1972, cited above; (6)an inadequate statement of reasons; and (7) manifest inappropriateness of thereplacement mechanism.

66.

    The first plea, alleging infringement of Regulation No 228/96 and breach of theprinciples of transparency and equal treatment, should first be examined.

Arguments of the parties

67.

    The applicant claims that, by authorising the successful tenderer to withdraw, inpayment for the supply, a product different from that prescribed by Regulation No228/96, the Commission infringed that regulation and was in breach of theprinciples of transparency and equal treatment.

68.

    The Commission contends, first, that the aim of the legislation at issue is to supplyhumanitarian aid to the people of Armenia and Azerbaijan by using productswithdrawn from the market by the intervention agencies in order to maintain theprices of agricultural products. In that context, the possibility of replacing the fruitspecified in Annex I to Regulation No 228/96 by other fruit withdrawn from themarket is apparent from the first and second recitals in the preamble to thatregulation, and from Regulations Nos 1975/95 and 2009/95.

69.

    The first and second recitals in the preamble to Regulation No 228/96 and thesecond recital in the preamble to Regulation No 1975/95 provide only that the fruit

handed over in payment to the successful tenderers is taken from the fruit stockswithdrawn from the market following intervention measures, without stating thatthat fruit given in payment to the successful tenderers must be expressly referredto in the notice of invitation to tender. In particular, Article 2(2) of Regulation No1975/95 and Article 2(2) of Regulation No 2009/95 do not require that the fruitwithdrawn from the intervention stocks be identical to that which is to be suppliedby the successful tenderers, but merely that it must belong 'to the same group ofproducts‘.

70.

    Furthermore, such an obligation cannot be reconciled with the real needs of theStates receiving the aid at issue. Thus, if one of them needs orange juice and thereare not enough oranges withdrawn from the market, it is clear that the successfultenderers would be paid with other fruit. Equally, in payment for the supply ofvarious fruit jams which are the subject-matter of Lots Nos 5 and 6 of RegulationNo 228/96, the product to be withdrawn is oranges or apples.

71.

    The replacement, after the award, of the fruits to be received as payment does notin any way constitute a breach of the principles of equal treatment andtransparency in that it had no influence on the course of the tendering procedure.The tenderers all competed under the same conditions, namely those laid down byRegulation No 228/96 and Annex I thereto. Since the replacement of fruit tookplace after the award, it did not have the slightest influence on the course of theoperation.

Findings of the Court

72.

    In connection with Council Directive 71/305/EEC of 26 July 1971 concerning theco-ordination of procedures for the award of public works contracts (OJ, EnglishSpecial Edition 1971 (II), p. 682), the Court of Justice held that, when a contractingentity had laid down prescriptive requirements in the contract documents,observance of the principle of equal treatment of tenderers required that all thetenders must comply with them so as to ensure objective comparison of the tenders(judgments in Case C-243/89 Commission v Denmark [1993] ECR I-3353, paragraph37; and Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraph 70). Inaddition, it has been held that the procedure for comparing tenders has to complyat every stage with both the principle of the equal treatment of tenderers and theprinciple of transparency so as to afford equality of opportunity to all tendererswhen formulating their tenders (Commission v Belgium, cited above, paragraph 54).

73.

    That case-law can be applied to this case. It thus follows that the Commission wasobliged to specify clearly in the notice of invitation to tender the subject-matter andthe conditions of the tendering procedure, and to comply strictly with the conditionslaid down, so as to afford equality of opportunity to all tenderers when formulatingtheir tenders. In particular, the Commission could not subsequently amend theconditions 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 tenderitself, without offending against the principle of transparency.

74.

    As stated above, the contested decision allows the successful tenderers, namelyTrento Frutta and Loma, to take as payment for their supplies products other thanthose specified in the notice of invitation to tender and, in particular, peachesinstead of apples and oranges.

75.

    Such a substitution is not provided for in the notice of invitation to tender as setout in Regulation No 228/96. It is clear from Annex I to that regulation, interpretedin accordance with Article 15(1) and (2) of Regulation No 2009/95 (see paragraphs9 to 13 above), that only the products listed, namely, as regards Lots Nos 1, 2 and5, apples, and, in respect of Lots Nos 3, 4 and 6, oranges, could be withdrawn bythe successful tenderers as payment for the supplies.

76.

    Furthermore, it is clear from Article 6(1)(e)(1) of Regulation No 2009/95 (seeparagraph 7 above) that tenders were to be valid only where they indicated thequantity of product requested by the tenderer as payment for the supply ofprocessed products under the conditions laid down in the notice of invitation totender.

77.

    The substitution of peaches for apples or oranges as payment for the suppliesconcerned, and the fixing of the coefficients of equivalence between those fruitstherefore constitute a significant amendment of an essential condition of the noticeof invitation to tender, namely the arrangements for payment for the products tobe supplied.

78.

    However, contrary to what the Commission contends, none of the provisions itcites, in particular, the first and second recitals in the preamble to Regulation No228/96 and Article 2(2) of Regulation No 1975/95 (paragraphs 3 and 12 above),authorises such a substitution, even by implication. Neither is substitution providedfor in the situation, put forward by the Commission, where the quantities of fruitin the intervention stocks are insufficient and the substitute fruit supplied aspayment to the successful tenderers belongs to the 'same group of products‘ astheir supplies.

79.

    Furthermore, the contested decision not only provides for the substitution ofpeaches for apples and oranges, but also fixes coefficients of equivalence byreference to circumstances arising after the award, namely the level of the pricesof the fruit concerned on the market in mid-August 1996 although the taking intoconsideration of such evidence, available after the award, in order to determine thearrangements for payment applicable to the supplies at issue, is not in any wayprovided for in the notice of invitation to tender.

80.

    In addition, the information supplied by the Commission in the course of theproceedings (see Annex 3 to the defence and the Commission's reply to thequestions put to it by the Court) does not show that, at the time when thecontested decision was adopted, apples were not available in the interventionstocks, so as to prevent the performance of the operations specified in the noticeof invitation to tender.

81.

    Even if there had been such a lack of availability, at the Community level, of appleswhich could be withdrawn, the fact remains that it was for the Commission to laydown, in the notice of invitation to tender, the precise conditions for anysubstitution of other fruit for that prescribed as payment for the supplies at issue,in order to comply with the principles of transparency and equal treatment. Failingthat, it was for the Commission to initiate a new tendering procedure.

82.

    It follows from the foregoing that the contested decision infringes the notice ofinvitation to tender prescribed in Regulation No 228/96 and also the principles oftransparency and equal treatment, and that it must therefore be annulled, withoutits being necessary to rule on the other pleas in law put forward by the applicant.

Case T-106/97

83.

    The admissibility of the action must be examined.

Arguments of the parties

84.

    The Commission contends that the action brought on 9 April 1997 was broughtafter the expiry of the time-limit laid down in the fifth paragraph of Article 173 ofthe Treaty, and that time began to run on 31 October 1996.

85.

    The applicant was certainly aware of the content of the Decision of 22 July 1996at the hearing of 31 October 1996 before the Tribunale Amministrativo Regionale,Lazio. At that date (and even 10 days before, that is 21 October 1996, accordingto AIMA's pleading), AIMA had produced in the case pending before that courtCommission Memorandum No 29903 of 23 July 1996 (Annex 11 to the defence inCase T-106/97). That memorandum reiterates the content of the Decision of 22July 1996 and, in particular, the coefficient of equivalence between apples andnectarines. The text of that decision was even annexed to it.

86.

    In its application in Case T-191/96 (paragraph 12), lodged at the Registry of theCourt of First Instance on 25 November 1996, the applicant furthermore claimedto know that on 22 July 1996 the Commission had adopted a decision whichextended, in relation to the Decision of 14 June 1996, the 'possibility ofsubstitution‘ of fruit. The applicant also showed that it knew the content of theDecision of 22 July 1996 by making express reference, in paragraph 23 of theapplication in Case T-191/96, to 'the fruits in question (apples and oranges, on theone hand, peaches and apricots and nectarines, on the other)‘.

87.

    The fact that the applicant did not request a copy of Memorandum No 29903 of23 July 1996, cited above, in the context of the proceedings before the TribunaleAmministrativo Regionale, Lazio, and that it did not take the trouble to have thatdocument communicated to it, even though it had brought an action against AIMAin respect of the tendering procedure at issue, constitutes grave negligence andcannot be pleaded in justification of its failure to observe the time-limit for bringingproceedings in the present case.

88.

    Even if the applicant did not in fact have knowledge of the whole text of theDecision of 22 July 1996, it should, in any event, have formally requested it fromthe Commission (judgment in Case T-12/90 Bayer v Commission [1991] ECR II-219;orders in Case C-102/92 Ferriere Acciaierie Sarde v Commission [1993] ECR I-801,paragraph 17 et seq.; and in Case T-468/93 Frinil v Commission [1994] ECR II-33,paragraph 31 et seq.).

89.

    The applicant claims that it had knowledge of the text of the Decision of 22 July1996 only when the Commission submitted its defence in Case T-191/96 on 30January 1997.

90.

    At the meeting of 26 July 1996 with the staff of DG VI, the applicant expresslyrequested information on any decision which might have extended the possibilityof substitution of fruit for that specified in the notice of invitation to tender.However, it did not receive any details from the officials present.

91.

    Although the pleading lodged by AIMA in the proceedings before the Italianadministrative court mentioned, in an annex, Memorandum No 29903 of 23 July1996, cited above, the applicant did not receive a copy of that document and didnot request one, taking the view that it was a memorandum analogous to theothers, relating to the replacement of apples and oranges by peaches and apricots.Moreover, AIMA's observations contained no reference to the Decision of 22 July1996. Nor was that decision mentioned at the hearing on 31 October 1996.

92.

    By letter of 5 September 1997 replying to a request from the applicant, AIMAstated, furthermore, that it could find no trace in its files of 'the Commissiondecision which was adopted on 22 July 1996‘ (Annex 3 to the reply in Case T-106/97).

Findings of the Court

93.

    In paragraph 12 of its application in Case T-191/96, the applicant stated that, at themeeting of 26 July 1996 (see paragraph 27 above), it had learned that, by twoseparate decisions, of 14 June and 22 July 1996 respectively, the Commission hadallowed the successful tenderers to withdraw, as payment for the supplies at issue,fruit other than that specified in the notice of invitation to tender. The second of

those decisions, which had not been communicated to the applicant, had 'againextended the possibility of substitution‘.

94.

    It is thus clear that, on 26 July 1996, the applicant had knowledge of the adoptionby the Commission on 22 July 1996 of a decision which extended the possibility ofsubstitution of fruit for apples and oranges laid down by the Decision of 14 June1996.

95.

    Next, in its pleading of 21 October 1996 lodged at the Tribunale AmministrativoRegionale, Lazio (Annex 4 to the reply in Case T-191/96), AIMA stated:

'It is a fact that the contested conversion parameters between the fruit (apples,oranges, peaches, apricots and nectarines) used as payment for the supplies, to beused for the benefit of Trento Frutta and Loma, are derived from Communitydecisions (see Memoranda No 24700 of 20 June 1996 and No 29903 of 23 July1996) which AIMA had necessarily to apply, while informing interested parties ofthem.‘

96.

    That document stated that Commission Memorandum No 29903 of 23 July 1996was annexed to it. It is not disputed that that memorandum reiterates the contentof the Commission Decision of 22 July 1996.

97.

    The hearing before the Tribunale Amministrativo Regionale, Lazio, was held on31 October 1996.

98.

    It thus follows that, by 31 October 1996 at the latest, the applicant had knowledge,at the very least, of the fact that the Commission had adopted a decision allowingthe substitution of nectarines for the fruit prescribed in payment for the suppliesprovided by Trento Frutta and Loma, and that the content of that decision wasreiterated in Commission Memorandum No 29903 of 23 July 1996.

99.

    That finding finds support in the fact that, in paragraph 23 of its application inCase T-191/96, lodged at the Registry of the Court of First Instance on 25November 1996, the applicant referred to the possibility of substitution ofnectarines for the fruit specified in the notice of invitation to tender.

100.

    Even if, as it asserts, the applicant did not have knowledge of the whole text of theDecision of 22 July 1996 before 30 January 1997, the date on which the defencewas lodged in Case T-191/96, with a copy of that decision annexed to it, it must beborne in mind that, according to the settled case-law of the Court of Justice, it isfor a party who has knowledge of a decision concerning it to request the whole textthereof within a reasonable period (order in Ferriere Acciaierie Sarde v Commission,paragraph 18).

101.

    However, in this case, it has not been established that the applicant asked theCommission to provide it with the full text of the Decision of 22 July 1996, either

after the meeting of 26 July 1996, or even after AIMA's pleading had been lodgedat the Tribunale Amministrativo Regionale, Lazio, on 21 October 1996, or evenafter the hearing before that court on 31 October 1996.

102.

    In those circumstances, the applicant is not justified in claiming that the point fromwhich time starts to run for bringing proceedings must be fixed at the date of 30January 1997. It is clear from the foregoing that a reasonable period for requestingthe full text of the Decision of 22 July 1996 had long since elapsed by that date.

103.

    It follows that the action brought on 9 April 1997 must be held to be out of timeand, accordingly, inadmissible.

Costs

104.

    Under the first subparagraph of Article 87(2) of the Rules of Procedure, theunsuccessful party is to be ordered to pay the costs if they have been applied forin the successful party's pleadings. According to Article 87(3) of the Rules ofProcedure, the Court of First Instance may order that the costs be shared or thateach party bear its own costs, where each party succeeds on some and fails onother heads, or where the circumstances are exceptional.

105.

    Since the Commission has been unsuccessful in Case T-191/96, it must be orderedto pay the costs in that case, as applied for by the applicant. As regards theproceedings for interim relief in Case T-191/96 R, the Court of First Instanceconsiders it appropriate, in the light of the order of the President of the Court ofFirst Instance of 26 February 1997, to order each party to bear its own costs.

106.

    By contrast, since the applicant has been unsuccessful in Case T-106/97, it must beordered to pay the costs in that case, as applied for by the Commission.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby:

1.    Annuls Commission Decision C (96) 2208 of 6 September 1996;

2.    Dismisses the application in Case T-106/97 as inadmissible;

3.    Orders the Commission to pay the costs in Case T-191/96, orders eachparty to bear its own costs in Case T-191/96 R, and orders the applicant topay the costs relating to Case T-106/97.

PotockiBellamy Meij

Delivered in open court in Luxembourg on 14 October 1999.

H. Jung

A. Potocki

Registrar

President

1: Language of the case: Italian.