In Case C-142/91,
Cebag BV, a company incorporated under Netherlands law, having its registered office at Zwolle (Netherlands), represented by J.M.E. Feije and H.J. Bronkhorst, of the Hague Bar, with an address for service in Luxembourg at the Chambers of J. Loesch, 8 Rue Zithe,
applicant,
v
Commission of the European Communities, represented by Robert Caspar Fischer, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION under the combined provisions of Article 181 of the EEC Treaty and Article 23 of Commission Regulation (EEC) No 2200/87 of 8 July 1987 laying down general rules for the mobilization in the Community of products to be supplied as Community food aid (OJ 1987 L 204, p. 1) for payment of the amounts withheld by the Commission when payment was made for certain deliveries of food aid and for the annulment of a telex message of 27 March 1991 relating thereto,
THE COURT (Fifth Chamber),
composed of: G.C. Rodríguez Iglesias, President of the Chamber, M. Zuleeg, R. Joliet, J.C. Moitinho de Almeida and D.A.O. Edward, Judges,
Advocate General: F.G. Jacobs,
Registrar: L. Hewlett, Administrator,
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 1 July 1992,
gives the following
Judgment
1 By application lodged at the Court Registry on 27 May 1991, Cebag BV (hereinafter "Cebag"), having its registered office at Zwolle (Netherlands), brought an action under the combined provisions of Article 181 of the EEC Treaty and Article 23 of Commission Regulation (EEC) No 2200/87 of 8 July 1987 laying down general rules for the mobilization in the Community of products to be supplied as Community food aid (OJ 1987 L 204, p. 1), on the one hand, for an order requiring the Community, or at least the Commission, to pay it ECU 104 508.61, corresponding to an amount withheld by the Commission pursuant to Article 22(2)(b) of Regulation No 2200/87, together with post-maturity interest as provided for in Article 18 of that regulation, and, on the other, for the annulment of the Commission decision contained in a telex message of 27 March 1991, by which the Commission rejected the request for the repayment of the amounts so withheld.
2 By Regulations (EEC) Nos 151/90 of 22 January 1990 (OJ 1990 L 18, p. 19), 419/90 of 19 February 1990 (OJ 1990 L 44, p. 10) and 840/90 of 2 April 1990 (OJ 1990 L 88, p. 11), the Commission initiated, in accordance with the provisions of Regulation No 2200/87, tendering procedures in particular for the supply of refined rape seed oil as food aid for Uganda (Action No 401/89), Mozambique (Actions Nos 759/89 and 760/89) and Bangladesh (Action No 904/89) respectively. The conditions pertaining to those tendering procedures are laid down in the annexes to the abovementioned Regulations Nos 151/90, 419/90 and 840/90.
3 In 1990 the Commission awarded the supply work in question to Cebag. The delivery securities lodged by Cebag in connection with those supply operations in accordance with Article 12 of Regulation No 2200/87 were subsequently released by the Commission.
4 When it came to make final payment towards the end of 1990 for the supplies to Uganda and Mozambique and in January 1991 for the supplies to Bangladesh, the Commission withheld a total of ECU 104 508.61 in respect of delays in the delivery of the goods, under Article 22(2)(b) of Regulation No 2200/87.
5 By five letters dated 4 March 1991, the applicant requested the Commission to repay the amounts withheld, together with post-maturity interest, on the basis of the judgment of 12 December 1990 in Case C-172/89 Vandemoortele v Commission [1990] ECR I-4677, in which the Court held that Regulation No 2200/87 did not authorize the Commission to withhold amounts in respect of late delivery at the time of payment.
6 By telex message of 27 March 1991, the Commission rejected the requests for repayment in respect of Actions Nos 401/89, 759/89 and 760/89 on the ground that the judgment in Vandemoortele v Commission, cited above, could not be relied on as regards payments made before 23 January 1991, the date on which that judgment was published in the Official Journal of the European Communities.
7 In its defence, the Commission stated that it regarded the request for reimbursement of the amounts withheld in respect of Action No 904/89 (Bangladesh) to have been made in good time, since the balance due in respect of that action had been paid on 21 January 1991. It undertook to pay the applicant the amount requested, namely ECU 39 415.51, together with post-maturity interest in the sum of ECU 1 775.31.
8 In its reply, Cebag therefore amended the form of order sought in its application so as to claim only reimbursement of ECU 65 093.10, together with post-maturity interest as provided for in Article 18 of Regulation No 2200/87.
9 Reference is made to the Report of the Judge-Rapporteur for a fuller account of the facts, the procedure and the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
Admissibility
10 The Commission considers that the action should be dismissed as inadmissible. In that regard it argues that the legal relationship between the Commission and a successful tenderer in connection with supplies covered by Regulation No 2200/87 is governed exclusively by Community regulations and that therefore Article 23 of that regulation, which provides that "the Court of Justice of the European Communities shall be competent to judge any dispute resulting from the carrying-out of, or the failure to carry out, supply operations in accordance with this Regulation, or from the interpretation of provisions concerning such operations", cannot be regarded as an arbitration clause contained in a contract within the meaning of Article 181 of the Treaty.
11 It should be observed in the first place that, according to Council Regulation (EEC) No 3972/86 of 22 December 1986 concerning food-aid policy and food-aid management (OJ 1986 L 370, p. 1), such aid is provided on the basis of contractual undertakings. Under Article 6(1)(c), the Commission is to decide on:
"the conditions governing the supply of aid, in particular:
° the general conditions applicable to recipients;
° the engagement of the mobilization procedures and the supply of products, as well as the conclusion of the corresponding contracts".
12 Contrary to the Commission' s assertion, the respective rights and obligations of the Commission and successful tenderers are not determined entirely by Community regulations. Suffice it to say in this regard that one essential element of the supply operation, namely the price, depends on the tenders put in by the tenderers and on the acceptance of the tenders by the Commission, as appears from the provisions of Article 9(1) and (3) of Regulation No 2200/87.
13 It follows that the supplies in question were implemented by contracts.
14 Next, it should be observed that, according to the regulations, based in particular on Article 6(1)(c) of Regulation No 3972/86, by which the Commission mobilized the goods in question, the supplies are to be made in accordance with the provisions of Regulation No 2200/87. Consequently, the clause set out in the aforementioned Article 23 forms an integral part of the supply contracts in question and must therefore be regarded as an arbitration clause within the meaning of Article 181 of the Treaty.
15 It follows that the objection of inadmissibility must be rejected.
Substance
16 As the Court decided in Vandemoortele v Commission, cited above, and in Case C-226/89 Haniel Spedition v Commission [1990] ECR I-1599, withholding amounts at the time of payment on account of late delivery is without legal basis.
17 The Commission considers, however, that the decision was taken to withhold the amounts in respect of Actions Nos 401/89, 759/89 and 760/89 at the time of the final settlement, which was received by the applicant before the end of 1990, and that the applicant is therefore no longer entitled to claim reimbursement of the amounts so withheld. In order to justify its refusal to make the reimbursement requested by the applicant, the Commission merely asserts that, prior to the judgment in Vandemoortele v Commission, cited above, the applicant had never made any objection to the disputed practice with regard to withholding amounts and had not contested the substantive correctness of the amounts withheld in respect of the three actions in question.
18 That argument cannot be accepted. Only a waiver of the claim to reimbursement, which the defendant has not alleged, or the fact that that claim is time-barred, which the defendant has not alleged either, could cause the applicant' s claim to fail.
19 As regards the claim for post-maturity interest, it should be noted that, according to Article 18(6) of Regulation No 2200/87, requests for payment in respect of each tender must be presented to the Commission within 12 months of the end of the period specified in the notice of invitation to tender, and that payment must be made within no more than three months of the date of presentation of the complete request for payment. Any payment made later than the abovementioned deadline attracts post-maturity interest at the Commission' s normal rate, unless the delay is justified by additional inspections or investigations.
20 It should be noted that the Commission does not deny that the requests for payment in respect of the actions in question were presented within the 12-month deadline referred to in the aforementioned provision.
21 Accordingly, the applicant' s claim should be upheld and the Commission should be ordered to pay it, in addition to the sum corresponding to the amounts withheld, post-maturity interest at the Commission' s normal rate from the date of expiry of the three-month period following presentation of the respective requests for payment.
Costs
22 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT (Fifth Chamber)
hereby:
1. Orders the Commission to pay Cebag BV, whose registered office is at Zwolle, the sum of ECU 65 093.10, together with post-maturity interest at the Commission' s normal rate from the expiry of the three-month time -limit period following the presentation of the respective requests for payment;
2. Orders the Commission to pay the costs.
