JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)
9 October 2002 (1) (Regulation (EC) No 111/1999 - Regulation (EC) No 1135/1999 - Food-aid to Russia - Invitation to tender for mobilisation - Invitation to tender for transport - Contractual relationship - Arbitration clause - Claim for performance of a contract - Admissibility - Provision of certificates for each means of transport - Default interest)
In Case T-134/01,
Hans Fuchs Versandschlachterei KG, established in Duisburg (Germany), represented by U. Schrömbges, L. Harings and C. Hütter, lawyers,
applicant,
v
Commission of the European Communities, represented by M. Niejahr, acting as Agent, with an address for service in Luxembourg,
defendant,
APPLICATION for an order that, primarily, the Commission or, alternatively, the Bundesanstalt für Landwirtschaft und Ernährung, pay a sum of DEM 13 130.04 (EUR 6 713.28), plus interest at an annual rate of 8% from 1 March 2000,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of: R.M. Moura Ramos, President, J. Pirrung and A.W.H. Meij, Judges,
Registrar: H. Jung,
having regard to the written procedure and further to the hearing on 23 April 2002,
gives the following
Judgment
Relevant provisions
1.
Council Regulation (EC) No 2802/98 of 17 December 1998 on a programme to supply agricultural products to the Russian Federation (OJ 1998 L 349, p. 12) provides for agricultural products to be made available to the Russian Federation.
2.
Under Article 2(3) of Regulation No 2802/98, supply costs, including transport to ports or frontier points, unloading excluded, and where appropriate, processing in the Community, are to be determined by public tendering procedure or, for reasons of urgency or routing difficulty, by restricted tendering procedure.
3.
Under Article 4(1) of Regulation No 2802/98, the Commission is to be responsible for execution of the operation under the terms of the regulation.
4.
The third recital in the preamble to Commission Regulation (EC) No 111/1999 of 18 January 1999 laying down general rules for the application of Council Regulation (EC) No 2802/98 (OJ 1999 L 14, p. 3), provides:
... to ensure satisfactory competition between the various operators in the Community, in the case of the supply of processed products and of products not available in intervention that must be mobilised on the Community market, these supplies should be organised in two stages and contracts awarded separately for the manufacture of the processed product or the mobilisation of the product on the market, as appropriate, and then for delivery to the delivery stage laid down for supply to the recipient country.
5.
Article 2(3) of Regulation No 111/1999 reads as follows:
The invitation to tender may cover the determination of the costs of the supply of products to be mobilised on the Community market. For such supplies, the costs shall cover in particular the price of the product and the costs of packaging and labelling the products to be delivered to the delivery stage laid down in the notice of invitation to tender, in accordance with the individual invitation to tender.
6.
Article 4(1) of Regulation No 111/1999 states that tenders are to be submitted in writing to the intervention agency, which, pursuant to Article 6(1) of that regulation, as amended by Commission Regulation (EC) No 1125/1999 of 28 May 1999 (OJ 1999 L 135, p. 41), is to forward to the Commission, for each lot, a complete copy of the two most favourable tenders received.
7.
Under Article 6(3) of Regulation No 111/1999, as amended by Regulation No 1125/1999, the Commission must inform the successful tenderer of the award of the contract as soon as possible and must send a copy of that decision to the intervention agency which received the tenders.
8.
Under Article 10(1) of Regulation No 111/1999, applications for payment for the supply must be submitted to the intervention agency.
9.
Article 16 of Regulation No 111/1999 states:
The Court of Justice of the European Communities shall be competent to resolve any dispute resulting from the implementation or the non-implementation or from the interpretation of the rules governing supply operations carried out in accordance with this Regulation.
10.
On 28 May 1999, the Commission adopted Regulation (EC) No 1135/1999 opening a second invitation to tender for the mobilisation of pigmeat on the Community market with a view to its subsequent delivery to Russia (OJ 1999 L 135, p. 85).
11.
Under Article 1 of Regulation No 1135/1999, an invitation to tender was thereby opened to establish the costs of supplying 40 000 tonnes (carcase equivalent) of pigmeat, presenting the characteristics and qualities indicated in Annex I, for delivery as a supply operation covered by Article 2(3) of Regulation (EC) No 111/1999, in accordance with that regulation and Regulation No 1135/1989.
12.
Article 2 of Regulation No 1135/1999 states:
For a given lot, supply shall comprise:
(a) the purchase of the products listed in Annex I, to be mobilised on the Community market and, in the case of fresh products, their processing into frozen products;
(b) the packaging and labelling of the products in accordance with the instructions in Annex I;
(c) the supply of the products at the ex cold store stage in the Community, at the place indicated by the successful tenderer in his tender, loaded on a means of transport and within the time limit laid down in Annex II;
(d) keeping of the product available for the carrier, before loading commences, for a minimum of 10 working days from the dates laid down in Annex II. Beyond that period the successful tenderer shall be entitled to the amount laid down in Article 7a(1) of Regulation (EC) No 111/1999.
The tender shall contain the exact place of taking-over (cold store) where all the products making up a single lot must be held. This place must be easily accessible for take-over by the carrier and must guarantee a loading rate of 100 tonnes per working day.
13.
Article 6 of Regulation No 1135/1999 reads as follows:
The successful tenderer shall take all necessary steps to ensure that the following certificates are sent to the successful tenderer for the supply operation at the time of removal:
- veterinary certificate,
- certificate of origin,
- quality certificate, and
- health certificate.
The cost of obtaining such certificates shall be borne by the successful tenderer for mobilisation of the product.
The certificates shall be drawn up in accordance with the models sent to the operators by the Commission at the formers' request.
14.
Regulation No 1135/1999 was suspended by Commission Regulation (EC) No 1248/1999 of 16 June 1999 suspending the invitation to tender opened by Regulation (EC) No 1135/1999 (OJ 1999 L 150, p. 23). Regulation No 1248/1999 was repealed and, so far as concerns, in particular, the various dates laid down for the submission of tenders and for delivery, Regulation No 1135/1999 was amended, by Commission Regulation (EC) No 1773/1999 of 10 August 1999 (OJ 1999 L 211, p. 46).
15.
By Commission Regulation (EC) No 1955/1999 of 13 September 1999 on the transport of pigmeat to Russia (OJ 1999 L 242, p. 13), an invitation to tender was opened to establish the costs of supplying the transport of pigmeat, mobilised on the basis of Regulation No 1135/1999, from the Community stores to Russia.
Facts giving rise to the dispute
16.
On 1 September 1999, the applicant submitted to the Bundesanstalt für Landwirtschaft und Ernährung (hereinafter the BLE), which is the German intervention agency, a tender for the mobilisation of pigmeat to Russia under Regulations Nos 111/1999 and 1135/1999.
17.
By decision of 14 December 1999, the Commission awarded the contract for the mobilisation to the tenderers listed in Article 1 of that decision. Under that decision, lot 14, 1 000 tonnes of half-carcases, was awarded to the applicant.
18.
By fax of 15 October 1999, the Commission informed the applicant of its decision to award the contract for the transport of the applicant's lot to the company Tour Trans Internationale Speditions GmbH (hereinafter Tour Trans).
19.
When the lot was loaded at the cold store at Zerbst (Germany), the applicant delivered to Tour Trans 60 veterinary certificates, including health certificates, drawn up by the veterinary service at Duisburg for the quantities delivered at the cold store at Zerbst, a certificate of origin drawn up by the Chamber of Commerce and Industry of Duisburg for a total quantity of 1 013 331.2 kg, and a certificate of quality drawn up by the applicant for that quantity.
20.
Since it did not agree with what the applicant had done, Tour Trans required it to make available the necessary documents for each means of transport used by Tour Trans and stated that, if the applicant refused, it would have them drawn up at the applicant's expense.
21.
By letter of 20 October 1999, the applicant notified the Commission of the disagreement which had arisen between it and Tour Trans. The Commission replied, by letter of 25 October 1999, referring to Article 6 of Regulation No 1135/1999, that the successful tenderer for the mobilisation was required to provide the certificates mentioned in that provision for each means of transport used.
22.
By letter of 10 November 1999, the Commission informed the applicant that...
