Avis juridique important

61996J0386

European Court reports 1998 Page I-02309

Summary

1 Appeals - Pleas in law - Admissibility - Conditions - Submission of arguments also raised before the Court of First Instance - No effect

(EC Statute of the Court of Justice, Art. 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

2 Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - 'Directly concerned' - Criteria - Implementation of a loan from the Community to the Soviet Union and its constituent Republics - Commission decision, addressed to the borrower, refusing to approve as complying with the applicable Community provisions an addendum to contracts concluded between the borrower's authorised agent and an undertaking which has been awarded a supply contract - Undertaking 'directly concerned'

(EC Treaty, Art. 173, fourth para.)

Parties

In Case C-386/96 P,

Société Louis Dreyfus & Cie, a company incorporated under French law, established in Paris, represented by Robert Saint-Esteben, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 24 September 1996 in Case T-485/93 Dreyfus v Commission [1996] ECR II-1101, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by Marie-José Jonczy, Legal Adviser, and Nicholas 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, Wagner Centre, 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 December 1997,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4 Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

5 Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

2. A description of the aspects of the environment likely to be significantly affected by the project.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]’

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

22The contents of the letter of 1 April 1993 may be summarised as follows. The Commissioner, Mr R. Steichen, stated that, having examined the amendments to the contracts concluded between Exportkhleb and various suppliers, the Commission was prepared to accept those relating to the postponement of the final dates for delivery and payment. On the other hand, "the magnitude of the price increases is of such a nature that we cannot consider them as a necessary adaptation but as a substantial modification of the contracts initially negotiated". He went on to state: "In fact, the present level of prices on the world market (end of March 1993) is not significantly different from the level which prevailed at the time when the initial prices were agreed (end of November 1992)." The Commissioner pointed out that the need, first, to ensure free competition between potential suppliers and, second, to secure the most favourable purchase terms constituted one of the main factors governing the approval of contracts by the Commission. He found that, in the present case, the amendments had been negotiated directly with the companies concerned, without any competition with other suppliers, and concluded: "The Commission cannot approve such major changes as simple amendments to existing contracts." The Commissioner stated that he would be willing to approve the amendments relating to the postponement of delivery and payment, subject to compliance with the usual procedure. On the other hand, he stated that "should it be considered necessary to modify the prices or quantities, it would then be appropriate to negotiate new contracts to be submitted to the Commission for approval under the full usual procedure (including submission of at least 3 offers)".

23It was in those circumstances that, by application lodged at the Registry of the Court of Justice on 9 June 1993 ..., the applicant brought the present action.

24By order of 27 September 1993 the Court of Justice referred the case to the Court of First Instance pursuant to Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 amending Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities (OJ 1993 L 144, p. 21).

17The contested judgment indicates that the applicant requested the Court to annul the Commission's decision of 1 April 1993 refusing to approve the amendments to the supply contract concluded with Exportkhleb (hereinafter `the contested decision'), and to order the Commission to pay it compensation for the pecuniary damage suffered by it, amounting to ECU 253 991.98 in respect of loss of interest, ECU 1 347 831.56 in respect of the difference between the initial contract price and the amended contract price and US$ 229 969.58 in respect of loss on the ecu/US$ exchange rate, and ECU 1 as compensation for the non-material damage suffered (paragraph 28).

18The Commission raised an objection of inadmissibility, contending that the Court should:

`- declare the application for annulment inadmissible on the ground that the matter is not of direct concern to the applicant;

- declare either that the contested decision does not give rise to liability on the part of the Commission or that the action is inadmissible since it concerns a complaint which does not put the Commission's non-contractual liability in issue' (paragraph 29).

The contested judgment

Admissibility of the action for annulment

19The Court of First Instance dismissed the action for the annulment of the contested decision as inadmissible on the following grounds:

`46 According to the fourth paragraph of Article 173 of the Treaty, any natural or legal person may institute proceedings against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to the former.

47 It is necessary, therefore, to determine whether the letter sent by the Commission to the VEB on 1 April 1993 is of direct and individual concern to the applicant.

48 First of all, the Commission has not denied that the applicant is individually concerned. Having regard to the circumstances of the case, the Court considers that only the question whether the contested decision is of direct concern to the applicant need be examined.

49 The Community rules and the agreements concluded between the Community and the Russian Federation provide for a division of powers between the Commission and the agent appointed by the Russian Federation to arrange the purchase of wheat. It is for that agent - in the present case, Exportkhleb - to select the other contracting party by means of an invitation to tender and to negotiate and conclude the contract. The Commission's role is merely to verify that the conditions for Community financing are fulfilled and, where necessary, to acknowledge, for the purposes of the disbursement of the loan, that such contracts are in conformity with the provisions of Decision 91/658 and with the agreements concluded with the Russian Federation. It is not for the Commission, therefore, to assess the commercial contract with reference to any other criteria.

50 It follows that the undertaking to which a contract is awarded has a legal relationship only with the party with whom it contracts, namely Exportkhleb, which is authorised by the Russian Federation to conclude contracts for the purchase of wheat. The Commission, for its part, has legal relations only with the borrower, namely the Russian Federation's financial agent, the VEB, which notifies it of commercial contracts so that their conformity can be recognised, and which is the addressee of the Commission's decision in that regard.

51 The action of the Commission does not therefore affect the legal validity of the commercial contract concluded between the applicant and Exportkhleb; nor does it modify the terms of the contract, particularly as regards the prices agreed by the parties. Thus, irrespective of the Commission's decision not to recognise the agreements as being in conformity with the applicable provisions, the amendment which the parties made on 23 February 1993 to their contract of 28 November 1992 remains validly concluded on the terms agreed between them.

52 The fact that the Commission was in contact with the applicant or with Exportkhleb cannot affect that assessment of the legal rights and obligations which each of the parties involved has under the applicable legislation and contractual agreements. Moreover, as regards the admissibility of the application for annulment, the exchanges relied on by the applicant do not show that the Commission went beyond its proper role. Thus, the letter sent by the Commission to Exportkhleb on 12 March 1993 expressly states that the amendments required an official request from the VEB. Similarly, the sole purpose of the alleged contacts between the Commission and the applicant in January 1993 was to have the parties include in their contract a condition which was indispensable for acceptance of conformity but it was left to the parties alone to modify their contract if they wanted to secure the financing provided for. Lastly, the fact that, several weeks before the adoption of its decision, the Commission held a meeting in Brussels with the applicant in order to explain its position does not as such establish that that decision was of direct concern to the applicant.

53 Whilst it is true that, on receiving from the Commission a decision finding that the contract is not in conformity with the applicable provisions, the VEB cannot issue a documentary credit capable of being covered by the Community guarantee, nevertheless, as stated above, the decision affects neither the validity nor the terms of the contract concluded between the applicant and Exportkhleb. The Commission's decision does not take the place of a decision taken by the Russian national authorities, since the Commission may only examine the conformity of contracts for the purposes of Community financing.

54 Lastly, in order to establish that the contested decision is of direct concern to it, the applicant cannot rely on the presence in the commercial contracts of a suspensory clause making performance of the contract and payment of the contract price subject to acknowledgement by the Commission that the criteria for disbursement of the Community loan are fulfilled. Such a clause is a link which the contracting parties decide to make between the contract concluded by them and a contingent future event; their agreement will be binding only if the latter occurs. The admissibility of an application under the fourth paragraph of Article 173 of the Treaty cannot, however, be made to depend on the intention of the parties. The applicant's argument must therefore be rejected.

55 In view of the foregoing, the Court considers that the Commission's decision of 1 April 1993, addressed to the VEB, is not of direct concern to the applicant, within the meaning of the fourth paragraph of Article 173 of the Treaty. Consequently, the application for annulment of that decision must be declared inadmissible.'

20The Court of First Instance declared admissible, however, the claims for compensation for the material and non-material damage allegedly suffered by the applicant on grounds which are not contested in this appeal.

21In the light of those considerations, the Court of First Instance:

(1) dismissed the application for annulment as inadmissible;

(2) dismissed the objection of inadmissibility inasmuch as it concerned the claims for compensation for the material and non-material damage allegedly suffered by the applicant;

(3) ordered the procedure relating to those claims for compensation to be continued in relation to the substance;

(4) reserved the costs.

The appeal

22In support of its appeal Dreyfus relies on two pleas: infringement of the fourth paragraph of Article 173 of the Treaty and contradictory reasoning vitiating the judgment.

The first plea

23The first plea is divided into three limbs.

24First, the appellant criticises the Court of First Instance's conclusion that, in the absence of direct legal relations with the Commission, the appellant could not be directly concerned by the decision since the `validity of the contract' or `its terms' were not affected (paragraphs 49, 50 and 51 of the contested judgment). However, the Court of Justice, and indeed the Court of First Instance itself, have held that an individual may be directly concerned, even if he has not entered into legal relations with the Commission, where his `legal or factual situation' is directly affected by the decision (Joined Cases 41/70 to 44/70 International Fruit Company and Others v Commission [1971] ECR 411, Case C-135/92 Fiskano v Commission [1994] ECR I-2885 and Case T-83/92 Zunis Holding and Others v Commission [1993] ECR II-1169).

25That is the case, the appellant submits, in triangular transactions where the national authority entrusted with implementing the Community decision has no margin of discretion, as in the present case.

26The parties had provided in their contract that it would be subject to the Commission's approval and that payment of the price would be by way of the Community loan. Therefore, that loan and the loan agreement entered into in that connection between the Commission and the Russian Federation were both the precondition for the performance of the contract and the sole means of payment, not only de facto but also de jure.

27As a result, contrary to what was stated in the judgment appealed against, the appellant's legal and factual situation was directly affected by the contested decision because the Russian authorities were obliged to pay the new price provided for in the addendum to the contract only and in so far as the Community loan was forthcoming.

28The appellant goes on to criticise the Court of First Instance for taking the view that `the Commission's decision does not take the place of a decision taken by the Russian national authorities, since the Commission may only examine the conformity of contracts for the purposes of Community financing' (paragraph 53). Relying on the judgment in International Fruit Company, cited above, the appellant maintains on the contrary that, in the absence of any discretion exercisable on the part of the Russian authorities in implementing the contested decision, that decision directly and automatically affected the appellant's legal situation under the contract. Consequently, the Russian authorities had no alternative but to note that the Commission had not given its approval and, thus, to pay for the supplies of wheat at the old price under the initial contract and not at the new price agreed on in the addendum to the contract.

29Finally, the appellant challenges the statement by the Court of First Instance that the `suspensory clause making performance of the contract and payment of the contract price subject to acknowledgement by the Commission that the criteria for disbursement of the Community loan are fulfilled ... is a link which the contracting parties decide to make between the contract concluded by them and a contingent future event; their agreement will be binding only if the latter occurs', and the conclusion it drew from that finding, namely that `the admissibility of an application under the fourth paragraph of Article 173 of the Treaty cannot ... be made to depend on the intention of the parties' (paragraph 54 of the judgment appealed against).

30The appellant submits that under the Court's case-law only the effect of the contested decision on the `legal or factual situation' of the applicant is relevant in determining whether it is directly concerned by the decision, even if that effect is linked to an intentional act on the part of the parties prior to the contested decision.

31The Commission challenges the admissibility of the appeal on the ground that nearly all the arguments put forward merely reproduce arguments developed by the appellant before the Court of First Instance. It has consistently been held that an appeal which merely repeats or reproduces verbatim pleas and arguments already raised at first instance does not satisfy the requirements of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of its Rules of Procedure.

32As to the substance, the Commission observes as a preliminary matter that the contractual clauses on which the appellant relies are far from clear and refutes the argument that, in the absence of approval by the Commission, the contractual obligation to pay came to an end. The contract at issue could only be interpreted by the competent jurisdiction, that is to say that chosen by the contracting parties in the contract itself, namely the Moscow Chamber of Commerce and Industry. Dreyfus has never brought the matter before that body.

33The Commission also cites Annex 25 to the application originating the proceedings before the Court of First Instance, in which Dreyfus produced a fax which it sent on 6 April 1993 to Exportkhleb and in which it pressed it for payment, notwithstanding the contested decision, in these terms:

`We trust you will understand that we consider we have with you a firm contract ... and must insist on fulfilment of your obligations under the contract.'

34As regards the first limb of the first plea, the Commission considers that, for an action for the annulment of a Commission decision to be admissible, the decision must produce effects in Community law with regard to the applicant, failing which it is not directly concerned by the decision.

35In the present case, by contrast, the request for advance payments under the loan granted to the Russian Federation was apparently addressed to the Commission by the VEB on behalf of Russia (and not Dreyfus) and the alleged effect was merely a result of a combination of the contested decision and the terms of the contract, to which the Commission is not a party.

36As regards the third limb of the first plea the Commission considers that the argument that the contractual clause predated the contested decision is wholly irrelevant. Moreover, judicial review of its decisions cannot be subject to arrangements under private law to which the Commission is not a party.

37As regards the objection of inadmissibility raised by the Commission, the appeal clearly states which aspects of the contested judgment are criticised and the legal arguments which specifically support the appeal (see, in particular, the order of 26 April 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 were also raised at first instance cannot entail their inadmissibility.

38The objection of inadmissibility must therefore be dismissed.

40Under the fourth paragraph of 173 of the Treaty, any natural or legal person may institute proceedings for the annulment of a decision addressed to that person or of a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to the former.

41In the present case the contested decision was formally addressed to the VEB.

42The Court of First Instance dealt only with the question whether the applicant was directly concerned by the contested decision, since the Commission had not denied that the applicant was individually concerned.

43 The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate 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 and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 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 and Benteler 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] ECR I-2477, paragraph 9).

44 The same applies where the possibility for addressees not to give effect to the Community measure is purely theoretical and their intention to act in conformity with 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 France and Others v Commission [1998] ECR I-0000, paragraph 51).

45 The Court of First Instance should therefore have determined whether the contested decision alone affected the appellant's legal situation, since the competent Russian authorities had no discretion to forgo Community financing and have the contract performed in accordance with the conditions agreed between the parties in the addendum but repudiated by the Commission.

46 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 commercial contract concluded between the applicant and Exportkhleb' and did not modify `the terms of the contract, particularly as regards the prices agreed by the parties', and that the `amendment which the parties made on 23 February 1993 to their contract of 28 November 1992 [remained therefore] validly concluded on the terms agreed between them' (paragraphs 51 and 53). It added that the presence in the contract of a `suspensory clause making performance of the contract and payment of the contract price subject to acknowledgment by the Commission that the criteria for disbursement of the Community loan are fulfilled' resulted from the intention of the parties themselves, on which the admissibility of an action under the fourth paragraph of Article 173 could not be made to depend (paragraph 54).

47 However, the findings of the Court of First Instance contain objective, relevant and consistent grounds for concluding that the appellant was directly concerned by the contested decision.

48 The contested judgment indicates that the VEB, acting as financial agent for the Russian Federation, participated, in accordance with the Memorandum of Understanding and the loan agreement which binds it to the Commission, in the implementation of the Community financing of imports into the Russian Federation of agricultural and food products and medical supplies, as provided for in Decision 91/658.

49 Moreover, it appears that the validity of the supply contract at issue was subject to the suspensory condition of recognition by the Commission of conformity of the contract with the conditions for disbursement of the Community loan and no payment could be made if the bank designated in the contract did not receive a due undertaking for reimbursement issued by the Commission.

50 That detail is corroborated by the socio-economic context in which the supply contract was concluded: as stated in the third and fourth recitals in the preamble to Council Decision 91/658, the economic and financial situation of the recipient republic was critical, and the food and medical situation was deteriorating. In those circumstances it was legitimate to take the view that the supply contract was entered into only subject to the obligations assumed by the Community, in its capacity as lender, in regard to the VEB, once the commercial contracts had been recognised as being in conformity with Community rules.

51 In those circumstances the insertion into the contract of that suspensory clause, which was certainly the intention of the parties, merely reflected, as was emphasised by the Advocate General in point 69 of his Opinion, the fact that the supply contract was subject for financial reasons to the conclusion of the loan agreement between the Community and the republic in question, since payment for supplies of cereals could be made only from financial resources made available to the purchasers by the Community by means of the opening of irrevocable documentary credits.

52 Exportkhleb's option to perform the supply contracts in accordance with the price conditions repudiated by the Commission and thus to forgo Community financing was purely theoretical and, in the light of the facts found by the Court of First Instance, was therefore not sufficient to prevent the appellant from being directly concerned by the contested decision.

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

54 Consequently, although the contested decision was addressed to the VEB, as financial agent of the Russian Federation, it directly affected the appellant's legal situation.

55 The Court of First Instance therefore erred in law in taking the view, in the light of the facts as found by it, that the appellant was not directly concerned, within the meaning of the fourth paragraph of Article 173 of the Treaty, by the contested decision.

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

The second plea

57 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

58 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 the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.'

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

Operative part

On those grounds,

THE COURT hereby:

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