JUDGMENT OF THE COURT

5 May 1998 (1)

(Emergency assistance given by the Community to the States of the formerSoviet Union — Loan — Documentary credit — Action for annulment —Admissibility — 'Directly concerned‘)

In Case C-404/96 P,

Glencore Grain Ltd, formerly trading as Richco Commodities Ltd, a companyincorporated under Bermudian law, established at Hamilton (Bermuda),represented by M.M. Slotboom, P.V.F. Bos and J.G.A. van Zuuren, of theRotterdam Bar, with an address for service in Luxembourg at the Chambers ofMarc Loesch, 11 Rue Goethe,

appellant,

APPEAL against the judgment of the Court of First Instance of the EuropeanCommunities (Third Chamber) of 24 September 1996 in Case T-509/93 Richco v Commission [1996] ECR II-1181, seeking to have that judgment set aside

the other party to the proceedings being:

Commission of the European Communities, represented by B.J. Drijber andN. Khan, of its Legal Service, acting as Agents, with an address for service in

Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, WagnerCentre, Kirchberg,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm,M. Wathelet (Rapporteur) and R. Schintgen (Presidents of Chambers),G.F. Mancini, J.C. Moitinho de Almeida, P.J.G. Kapteyn, J.L. Murray,D.A.O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann, L. Sevón and K.M. Ioannou,Judges,

Advocate General: A. La Pergola,

Registrar: D. Louterman-Hubeau, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 8 October 1997,

after hearing the Opinion of the Advocate General at the sitting on 16 December1997,

gives the following

Judgment

        

1.

    By application lodged at the Registry of the Court of Justice on 23 December 1996,Glencore Grain Ltd, formerly trading as Richco Commodities Ltd (hereinafter'Glencore‘ or 'the appellant‘) brought an appeal under Article 49 of the ECStatute of the Court of Justice against the judgment of the Court of First Instancein Case T-509/93 Richco v Commission [1996] ECR II-1181, (hereinafter 'thecontested judgment‘), dismissing as inadmissible its action for the annulment of theCommission's decision of 12 July 1993 addressed to the State Export-Import Bankof Ukraine.

Legal background

2.

    On 16 December 1991, the Council adopted Decision 91/658/EEC granting amedium-term loan to the Soviet Union and its constituent Republics (OJ 1991L 362, p. 89).

3.

    Article 1(1) thereof provides:

'The Community shall grant to the USSR and its constituent Republics a medium-term loan of not more than ECU 1 250 million in principal, in three successiveinstalments and for a maximum duration of three years, in order to enableagricultural and food products and medical supplies ... to be imported.‘

4.

    Article 2 of Decision 91/658 provides that for those purposes:

'... the Commission is hereby empowered to borrow, on behalf of the EuropeanEconomic Community, the necessary resources that will be placed at the disposalof the USSR and its constituent Republics in the form of a loan‘.

5.

    Article 3 provides:

'The loan referred to in Article 2 shall be managed by the Commission.‘

6.

    Article 4 further provides:

'1.    The Commission is hereby empowered to finalise, in concert with theauthorities of the USSR and its constituent Republics ..., the economic andfinancial conditions to be attached to the loan, the rules governing the provision offunds and the necessary guarantees to ensure loan repayment.

...

3.    Imports of products financed by the loan shall be effected at world marketprices. Free competition shall be guaranteed for the purchase and supply ofproducts, which shall meet internationally recognised standards of quality.‘

7.

    On 9 July 1992 the Commission adopted Regulation (EEC) No 1897/92 layingdown detailed rules for the implementation of a medium-term loan to the SovietUnion and its constituent Republics [in accordance with] Council Decision91/658/EEC (OJ 1992 L 191, p. 22).

8.

    Under Article 2 of that regulation:

'The loans shall be concluded on the basis of agreements entered into between theRepublics and the Commission which shall include, as conditions for disbursementof the loan, the requirements set out in Articles 3 to 7.‘

9.

    Article 4 of Regulation No 1897/92 states that:

'1.    The loans shall only finance the purchase and supply under contracts thathave been recognised by the Commission as complying with the provisions ofDecision 91/658/EEC and with the provisions of the agreements referred to inArticle 2.

2.    Contracts shall be submitted to the Commission for recognition by theRepublics or their designated financial agents.‘

10.

    Article 5 sets out the conditions of recognition pursuant to Article 4. These includethe two following conditions:

'(1)    The contract was awarded following a procedure guaranteeing freecompetition ...

(2)    The contract offers the most favourable terms of purchase in relation to theprice normally obtained on the international markets.‘

11.

    On 13 July 1992 the European Economic Community and the Ukraine, as successorin title to the USSR, signed a Memorandum of Understanding under RegulationNo 1897/92, on the basis of which an agreement was to be set up under which theEuropean Community was to grant to the Ukraine the loan provided for inDecision 91/658. It was provided that the EEC as lender would grant to theUkraine, as borrower, through the intermediary of its financial agent, the StateExport-Import Bank of Ukraine ('the SEIB‘), a medium-term loan of the principalsum of ECU 130 million for a maximum term of three years.

12.

    Paragraph 6 of the Memorandum provides:

'The proceeds of the loan, less commissions and costs incurred by the EEC, shallbe disbursed to the borrower and applied, according to the terms and conditionsof the Loan Agreement, exclusively to cover irrevocable documentary credits issuedby the borrower in international standard form pursuant to delivery contractsprovided that such contracts and documentary credits have been approved by theCommission of the European Communities as complying with the Council decisionof 16 December 1991 and the present Memorandum of Understanding.‘

13.

    Paragraph 7 sets out the conditions to which recognition of the conformity of thecontract is subject. It states in particular that the Ukrainian organisations, whenchoosing suppliers in the Community, should obtain at least three offers fromundertakings which are independent of one another.

14.

    On 13 July 1992 the Commission and the SEIB signed the loan agreement providedfor in Regulation No 1897/92 and the Memorandum of Understanding (hereinafter'the loan agreement‘). That agreement sets out in precise terms the machineryfor the disbursement of the loan. It establishes a facility to which recourse may behad during the drawing period (20 August 1992 to 20 April 1993), with a view tothe advance of sums authorised for payment of goods supplied.

    Facts and procedure before the Court of First Instance

15.

    In the contested judgment the Court of First Instance made the following findings:

'7    In response to an informal invitation to tender issued in May 1993 for thepurchase of wheat, Ukrimpex, an organization acting on behalf of Ukraine,received seven tenders, including that of the applicant. Ukrimpex acceptedthat tender, which was the only one guaranteeing delivery of the wheat by15 June 1993, even though it was not the most advantageous in terms ofprice. Under the contract, which was concluded on 26 May 1993, theapplicant undertook to supply 40 424 tonnes of wheat at a price ofECU 137.47 per tonne, CIF free out one safe Ukrainian Black Sea port,with guaranteed shipment by 15 June 1993.

8    Following notification of the contract by the SEIB to the Commission forapproval by the latter, and after the personal intervention of Mr Demianov,Vice-Prime Minister of Ukraine, who requested approval of the contractwith the minimum of delay, the Commission stated in a letter of 10 June1993 addressed to Mr Demianov that it was unable to approve the contractsubmitted to it by the SEIB. The Commission considered that that contractdid not offer the best purchase terms, particularly as regards the price,which was regarded as exceeding the acceptable level. The Commissionstated in the same letter that it was prepared, in view of the seriousness ofthe food situation, to open the Community stocks for immediate delivery toUkraine of 50 000 tonnes of wheat at a price which could be as much asUS $30 per tonne lower than that proposed by the applicant. That deliveryformed the subject of a fresh invitation to tender in which the applicant'stender was accepted.

9    On 11 June 1993 Ukrimpex informed the applicant of the Commission'srefusal decision and requested it to defer the transportation of the goods. The applicant replied that it had already chartered a vessel. Thus nearly40 000 tonnes of grain were in fact delivered.

10    By letter of 12 July 1993 addressed to the SEIB and signed by theCommissioner, Mr R. Steichen, the Commission officially informed theSEIB of its refusal to approve the contract which had been submitted to it. Mr Steichen stated in that regard: ”The Commission can only recognisedelivery contracts if such contracts fulfil all the criteria listed in CouncilDecision 658/91, Commission Regulation 1897/92 and the Memorandum ofUnderstanding. Furthermore, Clause 5.1(b) of the Loan Agreementconcluded with Ukraine on 13 July 1992 provides that the Commission shallissue Notices of Confirmation at its 'absolute discretion‘.” He continuedas follows: ”The Commission concluded that the contract submitted withyour Approval Request of 31 May did not satisfy all criteria stipulated andthat it must, therefore, decline to exercise its discretion to issue a Notice ofConfirmation.” He stated that the reason for that refusal was that the price

agreed was well above the level that the Commission regarded as acceptableand that this was one of the conditions for the credit operation laid downin Article 4(3) of Decision 91/658 and Article 5(2) of RegulationNo 1897/92. He concluded from this: ”In these circumstances, although Iappreciate that Ukraine's requirements are urgent, the Commission, takingall the circumstances into account, cannot accept that the contract submittedoffers the most favourable terms of purchase ...”

    ...

11    It was in those circumstances that, by application lodged at the Registry ofthe Court of First Instance on 10 September 1993, the applicant brought thepresent action.

12    By document lodged at the Registry on 30 November 1993 the Commissionraised an objection of inadmissibility.‘

16.

    The contested judgment indicates that the applicant requested the Court to:

'—    annul the decision, or at least the act, of 12 July 1993 addressed by theCommission to the SEIB;

—    order the Commission to pay the costs‘ (paragraph 15 of the contestedjudgment).

17.

    The Commission raised an objection of inadmissibility, in which it contended thatthe Court should:

'—    dismiss the action as inadmissible;

—    order the applicant to pay the costs‘ (paragraph 16 of the contestedjudgment).

The contested judgment

The objection concerning the absence of an actionable measure

18.

    The Court of First Instance dismissed the objection of inadmissibility in so far asit was based on the absence of an actionable measure for the purposes of thefourth paragraph of Article 173 of the Treaty on the following grounds:

'25    It is settled case-law that an action for annulment may be brought againstall measures adopted by the institutions, whatever their nature or form,which are intended to have legal effects (judgment of the Court of Justicein Case 22/70 Commission v Council [1971] ECR 263).

26    The Court finds in the present case that, as is apparent from the loanagreement, to which the SEIB is a party, where the Commission issues anotice of confirmation, the SEIB, to whom it is addressed, is entitled toissue a disbursement request. Conversely, the SEIB does not have that rightif the Commission refuses to issue a notice of confirmation.

27    Consequently, an act by which the Commission refuses to recognise acontract as being in conformity with the Community financing conditionsmust be regarded as producing legal effects in relation to the SEIB. Ittherefore constitutes an actionable measure within the meaning of the firstparagraph of Article 173 of the Treaty.‘

The objection that the act which the applicant is seeking to have annulled is not ofdirect concern to it

19.

    The Court of First Instance considered that the decision sent on 12 July 1993 bythe Commission to SEIB (hereinafter the 'contested decision‘) was not of directconcern to the applicant within the meaning of the fourth paragraph of Article 173of the Treaty and that, consequently, the application for annulment of thecontested decision must be declared inadmissible on the following grounds:

'39    According to the fourth paragraph of Article 173 of the Treaty, any naturalor legal person may institute proceedings against a decision which, althoughin the form of a decision addressed to another person, is of direct andindividual concern to the former.

    40    In the present case, inasmuch as the contested measure takes the form ofa letter addressed by the Commission to the SEIB on 12 July 1993, it isnecessary to determine whether that measure is of direct and individualconcern to the applicant.

    41    First of all, the Commission has not denied that the applicant is individuallyconcerned. Having regard to the circumstances of the case, the Courtconsiders that only the question whether the contested decision is of directconcern to the applicant need be examined.

    42    The Community rules and the agreements concluded between theCommunity, Ukraine and the SEIB provide for a division of powersbetween the Commission and the agent appointed by Ukraine to arrangethe purchase of wheat. It is for that agent — in the present case, Ukrimpex— to select the other contracting party by means of an invitation to tenderand to negotiate and conclude the contract. The Commission's role ismerely to verify that the conditions for Community financing are fulfilledand, where necessary, to acknowledge, for the purposes of disbursement ofthe loan, that such contracts are in conformity with the provisions of

Decision 91/658 and with the agreements concluded with Ukraine and theSEIB. It is not for the Commission, therefore, to assess the commercialcontract with reference to any other criteria.

    43    It follows that the undertaking to which a contract is awarded has a legalrelationship only with the party with whom it contracts, namely Ukrimpex,which is authorised by Ukraine to conclude contracts for the purchase ofwheat. The Commission, for its part, has legal relations only with theborrower and its financial agent, the SEIB, which notifies it of commercialcontracts so that their conformity can be recognised, and which is theaddressee of the Commission's decision in that regard.

    44    The action of the Commission does not therefore affect the legal validity ofthe commercial contract concluded between the applicant and Ukrimpex;nor does it modify the terms of the contract, such as the prices agreed bythe parties. Thus, irrespective of the Commission's decision not to recognisethe agreements as being in conformity with the applicable provisions, thecontract of 26 May 1993 remains validly concluded on the terms agreedbetween the parties.

    45    The fact that the Commission was in contact with the applicant or withUkrimpex cannot affect that assessment of the legal rights and obligationswhich each of the parties involved has under the applicable legislation andcontractual agreements. Moreover, as regards the admissibility of theapplication for annulment, the exchanges alleged by the applicant do notshow that the Commission went beyond its proper role, which is torecognise, or to decline to recognise, the conformity of the contract. Thisis a fortiori the position as regards the alleged contacts between theCommission and subsidiaries of the applicant in relation to contracts whichare distinct from the contract with which the present case is concerned.

    46    Whilst it is true that, on receiving from the Commission a decision findingthat the contract is not in conformity with the applicable provisions, theSEIB cannot issue a documentary credit capable of being covered by theCommunity guarantee, nevertheless, as stated above, the decision affectsneither the validity nor the terms of the contract concluded between theapplicant and Ukrimpex. The Commission's decision does not take theplace of a decision taken by the Ukrainian national authorities, since theCommission may only examine the conformity of contracts for the purposesof Community financing.

    47     Furthermore, as regards the direct applicability of Regulation No 1897/92,on which the applicant relies, the Court observes that Article 5 of thatregulation lists on a non-exhaustive basis — as is apparent from the use ofthe adverbial phrase ”in particular” — the conditions which contracts mustfulfil in order to qualify for Community financing; in addition, Article 4(1)

of the regulation expressly refers to the provisions of the agreementsconcluded between the Ukraine and the Commission. As regards the loanagreement, which sets out in precise terms the detailed rules pursuant towhich Community financing is granted, Article 5.1 thereof refers to theabsolute discretion of the Commission. In those circumstances, theapplicant's argument does not appear to be well founded.

    48    Lastly, in order to establish that the contested decision is of direct concernto it, the applicant cannot rely on the presence in the commercial contractsof a suspensory clause making the performance of the contract and paymentof the contract price subject to acknowledgement by the Commission thatthe criteria for disbursement of the Community loan are fulfilled. Such aclause is a link which the contracting parties decide to make between thecontract concluded by them and a contingent future event: their agreementwill be binding only if the latter occurs. The admissibility of an applicationunder the fourth paragraph of Article 173 of the Treaty cannot, however,be made dependent on the intention of the parties. The applicant'sargument must therefore be rejected.‘

20.

    In the light of those considerations, the Court of First Instance dismissed the actionas inadmissible and ordered the applicant to pay the costs.

The appeal

21.

    In support of its appeal, Glencore raises two pleas: infringement of the fourthparagraph of Article 173 of the Treaty and contradictory reasoning vitiating thejudgment.

The first plea

22.

    The first plea is divided into two limbs.

23.

    In the first limb the appellant criticises the Court of First Instance for departingfrom the settled case-law of the Court of Justice, and of the Court of First Instanceitself, in holding that the applicant was not directly concerned by the contesteddecision.

24.

    In the first place, it submits that the Court of First Instance erred in its view thatthe contested decision did not take the place of a decision taken by the Ukrainianauthorities (paragraph 46 of the contested judgment). It refers in that regard toArticle 4 of Regulation No 1897/92 and to the terms of the supply contract enteredinto by it with Ukrimpex which provided for a method of payment based on theCommunity loan, forthcoming only if the Commission approved the contract; andthose terms were justified by the deplorable financial situation in which the

Ukrainian authorities found themselves which would not have enabled them tohonour their payment obligations in the absence of Community financing.

25.

    Thus, under the contract, it is for Ukrimpex 'to obtain all necessary agreementssuch as approval of the relevant contract by the Commission of the EuropeanCommunities‘ and 'payment [is] to be effected for each shipment of the goods inaccordance with the terms of an EEC loan agreement ...‘.

26.

    In order to honour their undertakings to Glencore, the Ukrainian authorities weretherefore entirely dependent, in fact and in law, on recognition by the Commissionfor the purposes of Community financing. Accordingly, when the Commission inits letter of 10 June 1993 refused to recognise the conformity of the contractentered into on 26 May 1993, its decision, it is submitted, took the place of that ofthe Ukrainian authorities to pay the agreed price.

27.

    Secondly, the Court of First Instance failed to take account of the fact that in theabsence of Community financing the Ukrainian authorities had no margin ofdiscretion available to them as regards their obligation to pay Glencore (see JoinedCases 41/70 to 44/70 International Fruit Company and Others v Commission [1971]ECR 411, Case 62/70 Bock v Commission [1971] ECR 897, and Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207).

28.

    Thirdly, the Court of First Instance departed from the case-law of the Court ofJustice and the Court of First Instance on the admissibility of actions brought bya 'potential recipient of the aid‘ against Commission decisions on State aid.

29.

    It observes in that connection that, in the same way as a Member State which iscontemplating the grant of aid may agree with a potential recipient that it shouldbe granted only if the Commission approves the aid notified, the Ukrainianauthorities were contractually bound to pay to Glencore the new price if theCommission approved that price for the purposes of Community financing. Similarly, the position of Glencore, which during the recognition procedure by theCommission was in continuous contact with the latter, is analogous to the situationof a potential recipient of aid. The Court of First Instance erred in attaching noimportance to this fact at paragraph 45 of the contested judgment.

30.

    In the second limb of its plea the appellant submits that the Court of First Instanceerred in deciding that the existence of the suspensory clause affecting performanceof the contract and payment of the price did not mean that Glencore was directlyaffected by the contested decision (paragraph 48 of the contested judgment). Onthe contrary, the fact that the contract between Glencore and Ukrimpex had to beapproved by the Commission in order to be eligible for Community financing andthat its performance was therefore dependent, in fact and in law, on that approvalwas the very reason for including the suspensory clause.

31.

    The Commission challenges the admissibility of the appeal on the ground thatnearly all the arguments put forward merely reproduce arguments developed by theappellant before the Court of First Instance. It has consistently been held that anappeal which merely repeats or reproduces verbatim pleas and arguments alreadyraised at first instance does not satisfy the requirements of Article 51 of the ECStatute of the Court of Justice and of Article 112(1)(c) of its Rules of Procedure.

32.

    As regards the substance, the Commission notes that the appellant relies on thefact that the supply contract entered into with Ukrimpex contains a suspensoryclause. Irrespective of the differing interpretations to which that clause could giverise, however, a refusal on the part of the Commission to approve Communityfinancing could not mean that the financial obligations under the supply contractshould not be complied with.

33.

    Furthermore, the Commission considers that an individual's right of action againstan act of a Community institution cannot be made to depend on private-lawarrangements entered into by that individual with a third party or by action takenby one of the parties or by both parties in connection with the performance of thecontract.

34.

    The Commission goes on to observe that the Ukrainian authorities were notexercising prerogatives of public law under the aegis of a Community policy. Farfrom implementing a Community act, their decision to enter into the supplycontract, and then to refuse to pay the price difference subsequently agreed, onlyhas effects in private law in the legal relationship between Ukrimpex and theappellant. That, it is contended, is a major difference in relation to the situationin International Fruit Company, cited above. In the latter case, the nationalimplementing body, to which the Commission's contested decision had beenaddressed, was merely an intermediary between the Commission and the claimant,and had no room for manoeuvre.

35.

    As to the case-law on State aid relied on by the appellant, the Commissionobserves that, where it declares aid granted to an undertaking to be incompatiblewith the common market, that undertaking is always directly concerned by such adecision, irrespective of any provision which may have been inserted into thecontract entered into with it at the behest of the Member State.

36.

    As regards the objection of inadmissibility raised by the Commission, the appealclearly states which aspects of the contested judgment are criticised and the legalarguments which specifically support the appeal (see, in particular, the order of 26April 1993 in Case C-244/92 P Kupka-Floridi v Economic and Social Committee[1993] ECR I-2041, paragraph 9). Accordingly, the fact that those arguments werealso raised at first instance cannot entail their inadmissibility.

37.

    The objection of inadmissibility must therefore be dismissed.

38.

    Under the fourth paragraph of 173 of the Treaty, any natural or legal person mayinstitute proceedings for the annulment of a decision addressed to that person orof a decision which, although in the form of a decision addressed to anotherperson, is of direct and individual concern to the former.

39.

    In the present case the contested decision was formally addressed to the SEIB.

40.

    The Court of First Instance dealt only with the question whether the applicant wasdirectly concerned by the contested decision, since the Commission had not deniedthat the applicant was individually concerned.

41.

    The Court's case-law shows that, for a person to be directly concerned by aCommunity measure, the latter must directly affect the legal situation of theindividual and leave no discretion to the addressees of that measure who areentrusted with the task of implementing it, such implementation being purelyautomatic and resulting from Community rules without the application of otherintermediate rules (see to that effect, in particular, International Fruit Company,cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979]ECR 777, paragraphs 25 and 26, Case 113/77 NTN Toyo Bearing Company andOthers v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO vCouncil [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others vCouncil and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seikoand Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council[1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke andBenteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council[1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988]ECR 2151, paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECRI-2477, paragraph 9).

42.

    The same applies where the possibility for addressees not to give effect to theCommunity measure is purely theoretical and their intention to act in conformitywith it is not in doubt (see to that effect Case 62/70 Bock v Commission [1971]ECR 897, paragraphs 6 to 8, Case 11/82 Piraiki-Patraiki and Others v Commission[1985] ECR 207, paragraphs 8 to 10, and Joined Cases C-68/94 and C-30/95 Franceand Others v Commission [1998] ECR 0000, paragraph 51).

43.

    The Court of First Instance should therefore have determined whether thecontested decision alone affected the appellant's legal situation, since thecompetent Ukrainian authorities had no discretion to forgo Community financingand have the contract performed in accordance with the conditions agreed betweenthe parties in the addendum but repudiated by the Commission.

44.

    The Court of First Instance merely found that the decision of the Commission,'which may only examine the conformity of contracts for the purposes of

Community financing‘, had not affected 'the legal validity of the commercialcontract concluded between the applicant and Ukrimpex‘ and did not modify 'theterms of the contract, such as the prices agreed by the parties‘, and that the 'thecontract which the parties signed on 26 May 1993 [remained therefore] validlyconcluded on the terms agreed between them‘ (paragraphs 44 and 46). It addedthat the presence in the contract of a 'suspensory clause making performance ofthe contract and payment of the contract price subject to acknowledgment by theCommission that the criteria for disbursement of the Community loan are fulfilled‘resulted from the intention of the parties themselves, on which the admissibility ofan action under the fourth paragraph of Article 173 could not be made to depend(paragraph 48).

45.

    However, the findings of the Court of First Instance contain objective, relevant andconsistent grounds for concluding that the appellant was directly concerned by thecontested decision.

46.

    The contested judgment indicates that the SEIB, acting as financial agent for theUkraine, participated, in accordance with the Memorandum of Understanding andthe loan agreement which binds it to the Commission, in the implementation of theCommunity financing of imports into the Ukraine of agricultural and food productsand medical supplies, as provided for in Decision 91/658.

47.

    Moreover, it appears that the validity of the supply contract at issue was subject tothe suspensory condition of recognition by the Commission of conformity of thecontract with the conditions for disbursement of the Community loan and nopayment could be made if the bank designated in the contract did not receive adue undertaking for reimbursement issued by the Commission.

48.

    That detail is corroborated by the socio-economic context in which the supplycontract was concluded: as stated in the third and fourth recitals in the preambleto Council Decision 91/658, the economic and financial situation of the recipientrepublic was critical, and the food and medical situation was deteriorating. In thosecircumstances it was legitimate to take the view that the supply contract wasentered into only subject to the obligations assumed by the Community, in itscapacity as lender, in regard to the SEIB, once the commercial contracts had beenrecognised as being in conformity with Community rules.

49.

    In those circumstances the insertion into the contract of that suspensory clause,which was certainly the intention of the parties, merely reflected, as wasemphasised by the Advocate General in point 69 of his Opinion, the fact that thesupply contract was subject for financial reasons to the conclusion of the loanagreement between the Community and the republic in question, since payment forsupplies of cereals could be made only from financial resources made available tothe purchasers by the Community by means of the opening of irrevocabledocumentary credits.

50.

    Ukrimpex's option to perform the supply contracts in accordance with the priceconditions repudiated by the Commission and thus to forgo Community financingwas purely theoretical and, in the light of the facts found by the Court of FirstInstance, was therefore not sufficient to prevent the appellant from being directlyconcerned by the contested decision.

51.

    It is thus clear that the contested decision whereby the Commission, in the exerciseof its powers, refused to approve the addendum to the supply contract betweenUkrimpex and Glencore deprived the latter of any real possibility of performing thecontract awarded to it, or of obtaining payment for supplies made thereunder.

52.

    Consequently, although the contested decision was addressed to the SEIB, asfinancial agent of the Ukraine, it directly affected the appellant's legal situation.

53.

    The Court of First Instance therefore erred in law in taking the view, in the lightof the facts as found by it, that the appellant was not directly concerned, within themeaning of the fourth paragraph of Article 173 of the Treaty, by the contesteddecision.

54.

    The appeal is therefore well founded in so far as it relates to the dismissal asinadmissible of the action for annulment by the contested judgment.

The second plea

55.

    In view of the foregoing there is no need to examine the second plea.

     Referral back of the case to the Court of First Instance

56.

    Under the first paragraph of Article 54 of the EC Statute of the Court of Justice,'if the appeal is well founded, the Court of Justice shall quash the decision of theCourt of First Instance. It may itself give final judgment in the matter, where thestate of the proceedings so permits, or refer the case back to the Court of FirstInstance for judgment.‘

57.

    In the present case, the Court is of the view that it is not in a position to givejudgment in the present state of the proceedings and that the case must thereforebe referred back to the Court of First Instance for judgment on the substance.

On those grounds,

THE COURT

hereby:

1.    Annuls the judgment of the Court of First Instance of 24 September 1996    in Case T-509/93 Richco v Commission inasmuch as it dismisses asinadmissible the action for annulment brought by Glencore Grain Ltd,formerly trading as Richco Commodities Ltd.

2.    Refers the case back to the Court of First Instance for judgment on the     substance.

3.    Reserves costs.

Rodríguez IglesiasGulmann Ragnemalm Wathelet Schintgen Mancini Moitinho de Almeida Kapteyn Murray Edward Puissochet Hirsch Jann Sevón Ioannou

Delivered in open court in Luxembourg on 5 May 1998.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: Dutch.