Geodis Calberson GE v Etablissement national des produits de l'agriculture et de la mer (FranceAgriMer) [2013] EUECJ C-623/11 (17 January 2013)

Judgment This request for a preliminary ruling concerns the interpretation of Article 16 of Commission Regulation (EC) No 111/1999 of 18 January 1999 laying down general rules for the application of Council Regulation (EC) No 2802/98 on a programme to supply agricultural products to the Russian Federation (OJ 1999 L 14, p. 3), as amended by Commission Regulation (EC) No 1125/1999 of 28 May 1999 (OJ 1999 L 135, p. 41) (‘Regulation No 111/1999’). The request has been made in a dispute between Geodis Calberson GE and Établissement national des produits de l’agriculture et de la mer (FranceAgriMer) concerning a claim for compensation in respect of the damage allegedly suffered by that company as a result of the national intervention agency’s delay in acceding to requests for payment in respect of services carried out and in releasing the supply security which that company had been required to lodge in favour of that agency. Legal context Under Article 1(1) of 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): ‘Under the terms of this Regulation free supply shall be made to Russia of agricultural products as referred to in Article 3 that are either available following intervention or, if not so available, will be mobilised on the Community market.’ Article 2(3) of that regulation states: ‘Supply costs, including transport to ports or frontier points, unloading excluded, and where appropriate, processing in the Community, shall be determined by public tendering procedure or, for reasons of urgency or routing difficulty, by restricted tendering procedure.’ Article 4(1) of that regulation provides: ‘The Commission shall be responsible for execution of the operation under the terms of this Regulation. …’ Pursuant to Article 2 of Regulation No 111/1999: ‘1. An invitation to tender is opened to determine the costs of supply, to the sea ports and frontier points of take over by the recipient laid down in the notice of invitation to tender, of products either withdrawn from intervention stores or mobilised on the Community market. (a) Such costs may relate to the supply of goods from the loading bay of the intervention agency store, or loaded onto the means of transport, to a point of take over at the delivery stage laid down. ...’ Article 4(1) of that regulation states: ‘Tenders shall be submitted in writing to the intervention agency at the address given in the notice of invitation to tender before the date and time indicated. …’ Article 6 of Regulation No 111/1999 reads as follows: ‘1. The intervention agency or agencies concerned shall send the Commission by fax or written telecommunication, within 24 hours of the end of the period for the submission of tenders, a communication, quoting the Regulation opening the invitation to tender, for each lot comprising: (a) the names and addresses of the tenderers who have submitted admissible tenders pursuant in particular to Articles 3, 4 and 5; (b) and for each admissible tender, the amount or quantity tendered, as appropriate. The intervention agency or agencies concerned shall, within the time-limit specified in the previous subparagraph, forward to the Commission, for each lot, a complete copy of the two most favourable tenders received, accompanied by a copy of the security and of the financial undertaking mentioned in Article 5(1)(h) and (i) and the specimen signatures of the persons authorised to issue those documents. 2. On the basis of the tenders submitted, it may be decided, with regard to each lot: – not to award any contract for supply, or – to award the supply contract as appropriate on the basis of the price or quantity offered. 3. The Commission shall inform the successful tenderer of the award of the contract as soon as possible and shall send a copy of that decision to the intervention agency or agencies which received the tenders. 4. The intervention agencies that received tenders shall inform tenderers as soon as possible, by fax or electronic mail if necessary, of the outcome of their participation in the tender.’ Under Article 7(4) of Regulation No 111/1999: ‘The supply security shall be lodged in accordance with Article 8(1) of Title III of Regulation (EEC) No 2220/85 in favour of the intervention agency responsible for payment. Proof of the lodging of the supply security shall be provided by means of the original of the document issued by the financial body providing the security drawn up in accordance with Annex III.’ Article 8(3) of Regulation No 111/1999 provides: ‘In the event of difficulties arising in the course of execution of supply, after the products have been taken over by the successful tenderers, and except in cases of emergency, the Commission alone shall have the power to give instructions to facilitate completion of supply.’ Article 10(1) of that regulation states: ‘Applications for payment of the supply shall be submitted to the intervention agency referred to in Article 4 within two months of the end of the period laid down for the supply in the notice of invitation to tender. …’ Under Article 12(2) of that regulation: ‘The supply security shall be released when the successful tenderer provides proof of execution of the supply in accordance with the requirements of this Regulation and the Regulation opening the individual invitation to tender. …’ Article 16 of Regulation No 111/1999 provides: ‘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.’ Article 1 of Commission Regulation (EC) No 1799/1999 of 16 August 1999 on the supply of beef to Russia (OJ 1999 L 217, p. 20) provides: ‘An invitation to tender is hereby opened to establish the costs of supplying transport, from intervention stocks, for … beef …for delivery to [Russia], as a supply operation covered by Article 2(1)(a) of Regulation (EC) No 111/1999. Supply shall be carried out in accordance with the provisions of both that Regulation and this Regulation. …’ The dispute in the main proceedings and the question referred for a preliminary ruling At the close of the tendering period opened by Regulation No 1799/1999, Geodis Calberson GE was awarded a contract to transport beef from France to Russia. Once that transport had been carried out, that company applied to the national intervention agency, the Établissement national des produits de l’agriculture et de la mer (FranceAgriMer), for payment in respect of the services provided, in accordance with Article 10 of Regulation No 111/1999, and the release, on the terms laid down in Article 12 of that regulation, of the supply security which it had been required to lodge with the national intervention agency. Since its claims were not met in full, Geodis Calberson GE brought an action before the Tribunal de grande instance de Paris (Regional Court, Paris) seeking compensation for the damage which it claimed to have suffered by reason of the national intervention agency’s delay in acceding to its requests. Since the Tribunal de grande instance de Paris declared that it did not have jurisdiction to deal with the action, Geodis Calberson GE brought its action before the Tribunal administratif de Paris (Administrative Court, Paris). The case having been dismissed by a decision of 30 July 2007 on the ground that, in the absence of any specified period for payment of the supply of the transport or release of the financial security in Regulation No 111/1999, no fault could be attributed to the national intervention agency by reason of its delay in carrying out those operations, that company appealed to the Cour administrative d’appel de Paris (Administrative Court of Appeal, Paris). Since the Cour administrative d’appel de Paris upheld in part the decision under appeal, Geodis Calberson GE lodged an appeal in cassation before the Conseil d’État (Council of State). The Conseil d’État points out that, in its judgment in Case C-142/91 Cebag [1993] ECR I-553 , the Court of Justice found that the rights and obligations of successful tenderers for free supplies of European Community food products are not determined entirely by Community regulations but are a consequence of contracts between the Commission and those tenderers provided for by the regulation applicable to those supplies, and that the provisions of a Commission regulation that are identical to those of Article 16 of Regulation No 111/1999 must be regarded as an arbitration clause forming an integral part of the supply contract. The Conseil d’État also notes that the General Court, in its judgments in Case T-134/01 Hans Fuchs v Commission [2002] ECR II-3909 and in Joined Cases T-215/01, T-220/01 and T-221/01 Calberson GE v Commission [2004] ECR II-587, found, firstly, that it follows from the provisions of Regulations No 2802/98 and No 111/1999 that a legal relationship was created between the Commission and the successful tenderer, without the existence of that relationship being undermined by the fact that the mobilisation measures in respect of the supplies were carried out in part by the intervention agencies of the Member States, in particular in relation to the payment of the successful tenderers, secondly, that that relationship, in the absence of any express contractual categorisation in the applicable regulations, nonetheless satisfies the criteria of a bilateral contract, and, thirdly, that Article 16 of Regulation No 111/1999 is in the nature of an arbitration clause within the meaning of Article 272 TFEU. In those circumstances, the Conseil d’État decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘[Are] the provisions of Article 16 of [Regulation No 111/1999] to be interpreted as conferring on the Court of Justice of the European Union jurisdiction to rule on disputes relating to the conditions under which the intervention agency designated for receiving the tenders submitted during a tendering procedure for the free supply of agricultural products to Russia makes the payment owed to the successful tenderer and releases the supply security lodged by that tenderer in favour of that agency, in particular actions for compensation for damage suffered as a result of misconduct by the intervention agency while carrying out those transactions?’ Consideration of the question referred for a preliminary ruling By its question, the referring court asks, in essence, whether Article 16 of Regulation No 111/1999 is to be interpreted as conferring on the Court of Justice jurisdiction to rule on all disputes relating to a procurement procedure, such as that at issue in the main proceedings, in particular actions seeking compensation for damage suffered as a result of misconduct by the intervention agency in making the payment owed to the successful tenderer and in releasing the supply security lodged by that tenderer in favour of that agency. In order to answer the question referred, it is appropriate first to recall that, pursuant to Article 272 TFEU, the Court of Justice of the European Union is to have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the European Union, whether that contract be governed by public or private law. Next, it is appropriate to point out that the European Union legislation at issue provides for the establishment of a contractual legal relationship between the European Union and a successful tenderer such as the appellant in the main proceedings. Under Article 4(1) of Regulation No 2802/98, the Commission is to be responsible for execution of the operation to provide the Russian Federation with agricultural products. Under the terms of Article 6 of Regulation No 111/1999, that institution is to decide on the award of the contract to the successful tenderer, while the role of the intervention agencies is restricted, at that stage, to receiving and sending to the Commission the valid tenders submitted by tenderers. Moreover, under Article 8(3) of Regulation No 111/1999, the Commission alone is to have the power to issue instructions to facilitate completion of supply. Finally, in accordance with Article 9 of that regulation, it is for the Commission to control the supply. It follows from all of those provisions that a legal relationship is intended between the Commission, as awarding authority, and the successful tenderer. As regards the classification of that legal relationship, although it is not expressly stated in Regulations No 2802/98, No 111/1999 and No 1799/1999, the respective rights and obligations of the Commission and of the successful tenderers are not, as the General Court rightly pointed out (see Hans Fuchs v Commission , paragraph 53, and Calberson GE v Commission , paragraph 86), determined entirely by those regulations, one essential element of the supply operation, namely the price, being dependent on the tenders submitted by the tenderers and on acceptance by the Commission. It follows that the supply provided for in those regulations is implemented by a contract concluded between the Commission and the successful tenderer (see, by analogy, Cebag , paragraphs 12 and 13). It must also be borne in mind that Article 1 of Regulation No 1799/1999 provides that the supply is to be carried out in accordance with the provisions of Regulation No 111/1999. Consequently, the clause set out in Article 16 of the latter regulation forms an integral part of the supply contract and must be regarded as an arbitration clause within the meaning of Article 272 TFEU (see, by analogy, Cebag , paragraph 14). With regard to the scope of that arbitration clause, it is established case-law that the Court may, in principle, hear and determine only claims arising from a contract which contains the arbitration clause or claims that are directly connected with the obligations arising from that contract (see Case 426/85 Commission v Zoubek [1986] ECR 4057, paragraph 11; Case C-114/94 IDE v Commission [1997] ECR I-803, paragraph 82; and Case C-337/96 Commission v Iraco [1998] ECR I-7943, paragraph 49). Payment of the supply and release of the financial security constitute contractual obligations. They are set out respectively in Articles 10 and 12(2) of Regulation No 111/1999 and have become an integral part of the disputed contract pursuant to Article 1 of Regulation No 1799/1999, under which the supply is to be carried out ‘in accordance with the provisions of [Regulation No 111/1999]’. Consequently, the claims seeking compensation for the damage suffered as a result of the delay in performing those two contractual obligations must be regarded as arising from the disputed contract, which contains the arbitration clause, or as being directly connected with the obligations arising from that contract. Furthermore, for purposes of the proper administration of justice it is essential not to have a multiplicity of courts having jurisdiction in respect of one single contract, particularly on the basis of the contractual obligation at issue, and to prevent conflicting decisions (see, by analogy, Case C-96/00 Gabriel [2002] ECR I-6367 , paragraphs 57 and 58, and Case C-18/02 DFDS Torline [2004] ECR I-1417 , paragraph 26). It follows that Article 16 of Regulation No 111/1999 must be understood as conferring on the Court of Justice jurisdiction to rule on actions for compensation in respect of damage suffered as a result of alleged delays in payment of the supply of transport and in release of the financial security. In that regard, little relevance attaches to the fact that it is the national intervention agency which is required to ensure performance of the contractual obligations of payment of the supply and release of the financial security in question. The sole authority which it has to act arises from the disputed contract for supply which binds the Commission to the successful tenderer. Since the claims in question derive from that contract, the Court of Justice of the European Union must be recognised as having jurisdiction to hear and determine them, since the requirements of the proper administration of justice preclude a multiplicity of courts having jurisdiction in respect of a single contract on the basis of the identity of the party which has failed to meet its contractual obligations. It follows from the foregoing that the answer to the question referred is that Article 16 of Regulation No 111/1999 must be interpreted as conferring on the Court of Justice of the European Union jurisdiction to rule on disputes relating to the conditions under which the intervention agency designated to receive the tenders submitted during a tendering procedure for the free supply of agricultural products to the Russian Federation makes the payment owed to the successful tenderer and releases the supply security lodged by that tenderer in favour of that agency, in particular actions for compensation in respect of damage suffered as a result of misconduct by the intervention agency while carrying out those transactions. Costs Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (First Chamber) hereby rules: Article 16 of Commission Regulation (EC) No 111/1999 of 18 January 1999 laying down general rules for the application of Council Regulation (EC) No 2802/98 on a programme to supply agricultural products to the Russian Federation, as amended by Commission Regulation (EC) No 1125/1999 of 28 May 1999, must be interpreted as conferring on the Court of Justice of the European Union jurisdiction to rule on disputes relating to the conditions under which the intervention agency designated to receive the tenders submitted during a tendering procedure for the free supply of agricultural products to the Russian Federation makes the payment owed to the successful tenderer and releases the supply security lodged by that tenderer in favour of that agency, in particular actions for compensation in respect of damage suffered as a result of misconduct by the intervention agency while carrying out those transactions. [Signatures] * Language of the case: French. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a Disclaimer and a Copyright notice and rules related to Personal data protection. This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII