1.

Of the grounds for the inadmissibility of the application the most important is that of failure to observe the time-limit.

In this connexion the Commission expressed the view that, in the case of a tendering procedure such as the one here, which terminates in a Commission Decision and which in accordance with Article 13 of Regulation No 216/69 and with 6 (d) of the abovementioned general notice of periodic invitations to tender provides for the tenderers to be notified individually of the result of their respective tenders, the period for instituting proceedings begins to run from receipt of such notification where it is effected before the publication of the Commission Decision which, under Article 191 of the EEC Treaty, is not necessary for that decision to take effect. Since the individual notification in this case was made on 5 February 1979 it must be considered that the lodging of 03044the application is out of time, even having regard to the extension on account of distance under Article 81 of the Rules of Procedure.

On the other hand the applicant relies on Article 81 (1) of the Rules of Procedure which states:

“The period of time allowed for commencing proceedings against a measure adopted by an institution shall run from the day following the receipt by the person concerned of notification of the measure or, where the measure is published, from the 15th day after publication thereof in the Official Journal of the European Communities”.

This must be viewed as something approaching a principle of most favoured treatment in accordance with which, where a contested decision is not merely published, although publication is not required, but also individually notified to the persons concerned, the later of the dates must be taken for the purposes of instituting proceedings. As the Commission acknowledges the application was lodged in due time after the publication of the Commission Decision. If that principle were not to be generally recognized it would anyhow be necessary in this case to have regard to the publication of the Commission Decision. The notification issued by the Bundesanstalt to the applicant was in particular not only incomplete, in so far as an important factor, the minimum price fixed by the Commission, was lacking; there was no notification at all of a Commission Decision since the decision was only adopted on 30 January 1979 and the communication from the Bundesanstalt is dated 29 January. Finally the communication of the Bundesanstalt refers to a decision of the Management Committee for Beef and Veal and not to a Commission Decision.

In interpreting Article 81 of the Rules of Procedure, which is certainly not entirely clear, I consider it necessary to assume that it was not intended in the Rules of Procedure to depart in principle from the arrangements laid down in the Treaty. In any event the purpose of Article 81 is to establish clearly when the period for instituting proceedings begins to run and, where publication in the Official Journal is a requirement, to provide an extension in view of the fact that a certain time is necessary for delivery of the Official Journal in the Member States and that such delivery takes place at different times. Accordingly the decisive provision is the third paragraph of Article 173 of the EEC Treaty which reads:

“The proceedings provided for in this article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be”.

It is accordingly clear that here “notification” is to be understood as “publication”. In accordance with that provision however it may in fact be taken — that is how the words “as the case may be” are to be interpreted — that it does not indicate something in the nature of the principle of most favoured treatment; instead it is clear that it is the time of notification which is relevant when notification is an important factor in the applicability of a measure and that with regard to individual decisions in principle the time of their receipt is the decisive element.

It must also be recognized that that interpretation is indicated by common sense. Accordingly the Commission's view should be upheld when it states that it is entirely sufficient to meet the need for the protection of legal rights if the period for commencing an action is calculated from the time of receipt of an individual notification. On the other hand if, on the basis of “most favoured treatment” the period were permitted to run from the time of a subsequent publication which was not obligatory the frequent delays in the publication of measures whose publication is not obligatory would often lead to a considerable extension of the period for commencing proceedings or indeed to periods which had already expired starting to run again which certainly would not serve the ends of legal certainty. Furthermore if the applicant's view were upheld the Commission might be tempted, in order to avoid these consequences, to refrain from the publication of such measures which is likewise contrary to the interests of traders.

However if the interpreation of the Treaty and of the Rules of Procedure favoured by the Commission is approved in principle it further remains to ascertain whether in this case the notification received by the applicant is sufficient to meet the requirements which must be fulfilled for the period for commencing proceedings to start running.

In this connexion it may be presumed that notification of the measure in its entirety is not required; that is required as a condition for measures to take effect, within the meaning of Article 191 of the EEC Treaty, only in relation to the notification of decisions to those whom they are addressed, which in cases like this are the Member States. In the case of third parties who are affected it should be sufficient for causing the period for instituting proceedings to start to run that such parties are officially notified — not necessarily by the actual authority taking the decision but alternatively by an agency — of the essential contents, specifically relevant to them, of the measure so that they are able to decide whether they wish to institute proceedings before the Court of Justice. I may refer here to Article 19 of the Protocol on the Statute of the Court of Justice of the EEC in accordance with which a contested measure may be lodged even after the expiry of the period for commencing proceedings, which certainly means that the time from which the period begins is not dependent on a full acquaintance with the measure. In this case it may also be pointed out that, in the General notice of periodic invitations to tender (as also in Article 13 of Regulation No 216/69) it is expressly provided that tenderers shall be informed without delay by the intervention agency of the outcome of their participation in the invitation to tender.

There appears to me no doubt that in this case the communication sent to the applicant by the Bundesanstalt must suffice. In this connexion it certainly cannot be objected that that communication refers to a decision of the Management Committee for Beef and Veal and that it is dated 29 January whilst the formal Commission Decision was only adopted on 30 January 1979. This is explained, as we have heard, by the fact that the outcome of the consultations in the Management Committee for Beef and Veal are transmitted as quickly as possible to the national authorities to enable them without delay to begin preparation of the documents notifying those concerned. At any rate there are no grounds for believing that the applicant, who is fully conversant with the tendering procedure — a point which it has not disputed — was thereby misled; the applicant was certainly in no doubt that the measure in question merely constituted the views of the Management Committee for Beef and Veal and that the final decision in this matter would be taken by the Commission. Likewise I consider that it is not of decisive importance that it was merely stated in the notification that the applicant's tenders had not been accepted because they did not reach the level of the minimum prices and that the minimum prices themselves — other additional details do not appear in the Commission Decision — were not stated in the communication. In fact that did not constitute any impediment to instituting proceedings because a precise acquaintance with this feature of the decision was not material; the applicant in fact criticizes only the arrangement of the linking system as such.

The objection of inadmissibility thus appears to me justified in principle; accordingly findings to this effect with regard to the time-limit should at any rate be incorporated in judgment. Nevertheless the question may still be raised whether in this case that objection requires the application to be dismissed as inadmissible. It must however be conceded that the provisions in question are not entirely clear and that the Court has not yet provided an interpretation of them. On that ground, and not least with regard to the content of the notification from the Bundesanstalt, one might well venture in the present case — on the basis, as it were, of the principles underlying Article 42 of the Protocol on the Statute of the Court of Justice of the EEC, that is to say, overrunning the time-limits given the existence of unforeseeable circumstances or of force majeure — to consider that the application was not out of time. I. accordingly refrain from proposing that the application should be dismissed as inadmissible merely on that ground and shall thus examine the remaining details of the case.

2.

A second objection of inadmissibility relates to that part of the contested decision in which the minimum price is fixed for meat of the German intervention agency stored in Denmark. In this connexion we have learned that when the applicant's tenders were passed on by the German intervention agency to the Commission an error occurred in so far as the applicant's tenders for intervention meat stored in Denmark were included under the tenders for intervention meat stored in Germany. The Commission thus claims that it did not know of the applicant's tenders when it issued its decision relating to the meat in Denmark and the tenders are thus not included in that part of the decision and the applicant accordingly is not affected by it.

I consider that this view is not tenable. On this point I have regard to the course of the tendering procedure as it is laid down in Regulation No 216/69 and also in the General notice of periodic invitations to tender (Official Journal of 13 January 1978, No C 11, p. 16 et seq.) which has been frequently mentioned. Accordingly, it is provided (Article 9 of Regulation No 216/69) that persons participating in the tender shall submit offers in writing to the intervention agency. Article 11 of the regulation provides that in the light of the tenders received, minimum selling prices shall be fixed in accordance with the management committee procedure laid down in Article 27 of Regulation No 805/68. According to Article 12 if the tender is for less than the minimum price, it shall be refused. Finally according to Article 13 each tenderer shall immediately be informed by the intervention agency of the decision on his tender.

It is accordingly clear that tenders are duly and effectively incorporated into the procedure when they are lodged with the competent intervention agency. It is also clear that when the Commission fixes the minimum price, which is fundamentally on the basis of the tenders, although not exclusively so, a binding decision is taken upon the outcome of all the tenders which have been submitted. In my view this is how the said Article 12 of Regulation No 216/69 is to be understood and I cannot conceive that the outcome of duly submitted tenders should remain in doubt because the intervention agency committed an error in their classification in the course of transmitting them or that it is possible to disregard them for that reason. Furthermore, this is how the jugdment in Case 92/78 (paragraphs 23 to 26) is to be understood when it is stated that the Commission directly determines the fate, be it favourable or unfavourable, of each of the tenders submitted in answer to the notices of invitations to tender.

Since in the present case however there is no doubt that the applicant's tenders were duly submitted to the German intervention agency it must consequently be accepted that in fixing the minimum price for the intervention meat stored in Denmark the fate of those tenders was also definitively settled, so that because of the Commission Decision they could not be taken into consideration by the intervention agency with which the necessary contracts of sale would have had to be concluded. Finally it cannot be maintained that the Commission Decision is entirely unconnected with a number of the applicant's tenders and that accordingly the application is inadmissible in so far as it concerns the rejection of the Danish tenders.

It will moreover be necessary subsequently to consider what are the consequences of the error in transmission of the tenders, whether the introduction of an error in the basis of the decision, for which the intervention agency is responsible, means that the Commission Decision is vitiated in this respect by a particular defect justifying its annulment or whether an action, perhaps for damages, lies against the German intervention agency alone.

3.

In the view of the Commission the application is finally inadmissible because the applicant has no legal interest in the annulment of the contested decision.

It considers that such an interest, founded on obtaining a change in the system through criticism of the legal basis of the decision, certainly no longer exists since the delivery of the judgment in Case 92/78 in which that criticism has already been upheld. There is likewise no such interest where the advancement of possible claims for damages is concerned because, according to the Community system, it is unnecessary as a preliminary to annul an unlawful harmful act. Finally the existence of such an interest is also to be denied in that the Commission is unable to make good the legal position of the applicant since it is impossible in law and in fact for it now to accept the latter's tenders or at least to issue licences for the importation of frozen meat free of the levy.

4.

This means that none of the objections submitted by the Commission require the application to be dismissed as inadmissible.

1.

Lengthy treatment is at any rate unnecessary for that part of the decision in which the minimum prices for the intervention meat stored in Germany were fixed and in which regard was certainly had for the applicant's tender.

Since that decision is based on the special arrangements for imports which were in force up to the spring of 1979 and have already come up for consideration in Case 92/78 and since the applicant referring to the arguments put forward in Case 92/78 advanced the same criticisms the only finding which can be made in this matter is that the Commission Decision of 30 January 1979 must be annulled in so far as it concerns the applicant by reason of its defective legal basis.

2.

With regard to the part of the decision relating to the meat of the German intervention agency stored in Denmark the Commission maintained that the failure to take the applicant's tenders into account stemmed from the error in their transmission and not from the unlawful arrangements. In fact even within the framework of other, proper arrangements the tenders would not have been taken into consideration and the contested arrangements were not the cause of their rejection. In addition the said error in transmission is something for which the German intervention agency is liable and thus cannot constitute an additional ground for annulment, for example on the argument that in so far as the Commission Decision relates to minimum prices for meat stored in Denmark it was adopted on an incomplete basis. If any other view were adopted it would lead to legal uncertainty since the errors of an intervention agency which the Commission cannot influence could mean that an entire tendering procedure might be ineffectual.

This does not however appear to me convincing. As I have already stated I take the view that the decision concerning the intervention meat stored in Denmark also applies, in accordance with the provisions of Regulation No 216/69, to the applicant's tenders and excludes them. This part of the decision was likewise adopted on the basis of the contested arrangements. It is likewise based on provisions which, according to the ruling of the Court of Justice, are unlawful. Different arrangements might have led to the fixing of a different minimum price — it should in fact not be forgotten that there was only one tenderer for the meat stored in Denmark and that the quantities were clearly not used up; if a different price had been fixed the applicant's tenders might perhaps not have been excluded. It is accordingly difficult to maintain that the contested arrangements did not give rise to the decision adversely affecting the applicant.

With regard to the appraisal of the error in the transmission of the tenders to the Commission — which in fact does not call for any further examination — I am inclined to favour the applicant's view in this matter. The main point is that the applicant had to submit its tenders to the intervention agency and that they thereby effectively came within the scope of the market arrangements. Since in the tendering procedure the intervention agencies — as was stated in the judgment in Case 92/78 — are only concerned to collect the tenders, transmit them to the Commission and notify the participants of the result of the procedure it is in fact clear that in this matter they are to be considered as mere agents of the Commission. Errors committed which come within their competence must thus be taken into consideration in appraising the lawfulness of the Commission Decision. The Commission Decision must thus be considered unlawful because its basis was defective since all the necessary tenders were not considered. This view is not affected by the arguments concerning legal certainty advanced by the Commission since in such a case the Commission Decision need not be annulled in its entirety but only in so far as it is contested in an application and to the extent to which it concerns the particular applicant.

It follows that an annulment must also extend to that part of the decision which fixes minimum prices for meat of the German intervention agency stored in Denmark.