1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 25 OCTOBER 1984 , THE CENTRALE MARKETINGGESELLSCHAFT DER DEUTSCHEN AGRARWIRTSCHAFT MBH , BONN , BROUGHT AN ACTION , BY VIRTUE OF AN ARBITRATION CLAUSE WITHIN THE MEANING OF ARTICLE 181 OF THE EEC TREATY , FOR AN ORDER REQUIRING THE EUROPEAN ECONOMIC COMMUNITY , REPRESENTED BY THE COMMISSION , TO PAY THE APPLICANT DM 35 147.69 TOGETHER WITH INTEREST AT THE RATE OF 4% PER ANNUM AS FROM 16 FEBRUARY 1984 IN RESPECT OF COSTS INCURRED IN THE PERFORMANCE OF A RESEARCH CONTRACT ( ' THE CONTRACT ' ) ENTERED INTO BY THE PARTIES IN 1980 PURSUANT TO COMMISSION REGULATION ( EEC ) NO 2935/79 OF 20 DECEMBER 1979 CONTINUING THE MEASURES REFERRED TO IN REGULATION ( EEC ) NO 723/78 ON MARKET RESEARCH MEASURES WITHIN THE COMMUNITY IN RESPECT OF MILK AND MILK PRODUCTS .
2 ARTICLE 1 OF REGULATION NO 2935/79 PROVIDES THAT , UNDER THE CONDITIONS LAID DOWN IN THE REGULATION , ENCOURAGEMENT IS TO BE GIVEN TO RESEARCH WORK DESIGNED TO EXPAND THE MARKETS FOR COMMUNITY MILK AND MILK PRODUCTS INSIDE THE COMMUNITY . ARTICLE 2 ( 1 ) OF THE REGULATION PROVIDES THAT THE RESEARCH WORK IS TO BE PROPOSED AND CARRIED OUT BY RESEARCH INSTITUTES , BODIES , ORGANIZATIONS OR UNDERTAKINGS WHICH ' HAVE THE NECESSARY QUALIFICATIONS AND EXPERIENCE ' AND ' GIVE SUITABLE GUARANTEES TO ENSURE THE SATISFACTORY COMPLETION OF THE WORK ' . ARTICLE 2 ( 2 ) PROVIDES THAT ' COMMUNITY FINANCING IS TO BE LIMITED TO 75% OF EXPENDITURE INCURRED ' . THE REGULATION ALSO PROVIDES THAT THE PARTIES ARE TO TRANSMIT TO THE COMPETENT AUTHORITY APPOINTED BY THEIR MEMBER STATE PROPOSALS ( ARTICLE 3 ( 1 )) SETTING OUT IN PARTICULAR ANY DETAILS CONCERNING THE RESEARCH WORK PROPOSED INCLUDING THE PRICE ASKED FOR THE WORK ' GIVING AN ITEMIZED BREAKDOWN OF THIS AMOUNT ' ( ARTICLE 4 ( 1 )). FINALLY , THE COMMISSION IS TO CONCLUDE CONTRACTS WITH THOSE PARTIES WHOSE PROPOSALS ARE ACCEPTED , AND THE DETAILS INDICATED IN THE PROPOSALS CAN BE SPECIFIED AND SUPPLEMENTED IN THOSE CONTRACTS ( ARTICLES 5 AND 6 ).
3 THE CONTRACT WHICH WAS CONCLUDED BETWEEN THE PARTIES ON THE BASIS OF THOSE PROVISIONS RELATES TO A RESEARCH PROJECT SUBCONTRACTED TO PROFESSOR SCHWANDT OF MUNICH UNIVERSITY . THE CONTRACT IS BASED , IN PARTICULAR , ON A PROPOSAL MADE BY THE APPLICANT ON 28 MARCH 1980 . WITH REGARD TO THE PRICE ASKED FOR THE WORK IN QUESTION , THE PROPOSAL CONTAINED THE FOLLOWING BREAKDOWN OF EXPENDITURE :
' ( 1 ) EQUIPMENT
NON-DURABLE EQUIPMENT ( ' ' KURZLEBIGE WIRTSCHAFTSGERATE ' ' ), INCLUDING THE CONVERSION AND ADAPTATION OF EXISTING EQUIPMENT TO BROADER METHODS OF ANALYSIS :
DM 70 000
( 2 ) STAFF COSTS DM 439 000
( 3 ) LABORATORY COSTS DM 160 000
( 4 ) TESTS TO BE CARRIED OUT DM 161 000
( 5 ) BIOMETRICS - DATA PROCESSING DM 50 000
TOTAL DM 880 000 . '
4 THAT BREAKDOWN OF EXPENDITURE WAS INITIALLY INCORPORATED IN CLAUSE 1 ( 1 ) OF THE CONTRACT AS FOLLOWS :
' ( 1 ) NON-DURABLE EQUIPMENT ( ' ' GERATE , KURZLEBIG ' ' ) DM 70 000
( 2 ) STAFF COSTS DM 439 000
( 3 ) COSTS OF MATERIAL ( ' ' SACHKOSTEN ' ' ) DM 160 000
( 4 ) TESTS TO BE CARRIED OUT DM 161 000
( 5 ) BIOMETRICS - DATA PROCESSING DM 50 000 . '
ACCORDINGLY , IN CLAUSE 3 ( 1 ) OF THE CONTRACT , TOTAL EXPENDITURE WAS ESTIMATED AT DM 880 000 , ENCOMPASSING ALL THE ITEMS INDICATED .
5 WITH REGARD TO COMMUNITY FINANCING FOR THE PROJECT , CLAUSE 3 ( 2 ) OF THE CONTRACT PROVIDES THAT THE COMMUNITY IS TO DEFRAY UP TO 75% OF THE EXPENDITURE ACTUALLY INCURRED IN CARRYING OUT THE RESEARCH WORK PROPOSED , SUBJECT TO A MAXIMUM LIMIT OF DM 660 000 . HOWEVER , AS FAR AS THE MATERIALS ( ' SACHMITTEL ' ) ARE CONCERNED , CLAUSE 5 ( 3 ) OF THE CONTRACT STIPULATES : ' IF IN ORDER TO CARRY OUT THE RESEARCH WORK IT IS NECESSARY TO ACQUIRE APPARATUS , INSTRUMENTS , MACHINES AND SO ON , ONLY CORRESPONDING EXPENDITURE UP TO 20% OF THE PURCHASE PRICE INDICATED IN THE CONTRACTING PARTY ' S PROPOSAL MAY BE CHARGED TO THIS CONTRACT ' . UNDER CLAUSE 5 ( 1 ) OF THE CONTRACT THE TENDERER OR THE SUBCONTRACTOR ' IS TO USE THE MATERIALS WHICH ARE NECESSARY TO ENSURE THE PROPER PERFORMANCE OF THE CONTRACT ' .
6 FINALLY , CLAUSE 14 OF THE CONTRACT STIPULATES THAT REGULATION NO 2935/79 AND THE APPLICANT ' S PROPOSAL ARE TO FORM AN INTEGRAL PART OF THE CONTRACT .
7 AT PROFESSOR SCHWANDT ' S REQUEST , WHICH WAS FORWARDED BY THE APPLICANT BEFORE COMPLETION OF THE WORK , THE COMMISSION , BY LETTER OF 28 OCTOBER 1982 , AUTHORIZED AN AMENDMENT TO CLAUSE 1 ( 1 ) OF THE CONTRACT , WHICH WAS TO READ AS FOLLOWS :
' ( 1 ) EQUIPMENT DM 79 000
( 2 ) STAFF COSTS DM 520 000
( 3 ) COSTS OF MATERIAL ( TESTS TO BE CARRIED OUT , BIOMETRICS -
DATA PROCESSING )
DM 281 000 . '
8 THE RESEARCH PROJECT WAS COMPLETED AT THE END OF 1982 AND FINAL ACCOUNTS WERE DRAWN UP BY THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS , HEREINAFTER REFERRED TO AS ' THE OFFICE ' ), WHICH WAS DESIGNATED FOR THAT PURPOSE BY THE FEDERAL REPUBLIC OF GERMANY IN ACCORDANCE WITH ARTICLE 3 ( 1 ) OF REGULATION NO 2935/79 . IT THEREUPON BECAME APPARENT THAT THE TOTAL EXPENDITURE INCURRED IN THE RESEARCH PROJECT WAS WELL WITHIN THE UPPER LIMIT SPECIFIED IN THE CONTRACT . EXPENDITURE WAS CALCULATED BY THE APPLICANT AS TOTALLING DM 868 958.21 , BROKEN DOWN AS FOLLOWS :
EQUIPMENT : DM 78 732.37
STAFF COSTS : DM 523 044.72
COSTS OF MATERIAL : DM 267 181.12
9 HOWEVER , BY LETTER OF 12 DECEMBER 1983 , THE OFFICE REFUSED THE APPLICANT ' S REQUEST TO CHARGE CERTAIN SUMS TO THE CONTRACT . COSTS OF MATERIAL WHICH , IN THE OFFICE ' S VIEW , WERE NOT SO CHARGEABLE INCLUDED THE ONLY ITEM STILL IN DISPUTE , NAMELY LEASING COSTS , AMOUNTING TO DM 62 840.43 AND RELATING TO THREE MEASURING INSTRUMENTS . IN THAT REGARD , THE OFFICE STATED IN ITS LETTER INTER ALIA THAT :
' THE PROPOSAL ON WHICH THE CONTRACT WAS BASED DOES NOT PROVIDE FOR THE USE OF INSTRUMENTS WHICH HAVE TO BE ACQUIRED UNDER A LEASING CONTRACT . ACCORDINGLY , THERE WAS NO CONTRACTUAL STIPULATION THAT LEASING COSTS WERE TO BE CHARGED TO THE CONTRACT .
NONE THE LESS , THE COMMISSION HAS AGREED . . . THAT 20% OF THE COSTS , CALCULATED ON THE BASIS OF THE ACQUISITION VALUE , SHOULD BE CHARGEABLE TO THE CONTRACT . '
THE OFFICE THEREFORE ASSESSED THE AMOUNT CHARGEABLE TO THE CONTRACT AT 20% OF THE PURCHASE PRICE INDICATED BY THE SUPPLIERS , NAMELY DM 15 976.84 .
10 THE APPLICANT SUBSEQUENTLY BROUGHT THIS APPLICATION IN WHICH IT SEEKS PAYMENT BY THE COMMISSION OF 75% OF THE DIFFERENCE BETWEEN THE LEASING COSTS INVOICED , NAMELY DM 62 840.43 , AND THE AMOUNT ACCEPTED AS BEING CHARGEABLE TO THE CONTRACT , NAMELY DM 15 976.84 .
11 THE APPLICANT CONSIDERS THAT IT SHOULD BE REIMBURSED 75% OF THE COST OF LEASING THE THREE INSTRUMENTS IN QUESTION . IN ITS VIEW , THE DECISIVE FACTOR IS WHETHER THE THREE INSTRUMENTS CONSTITUTE NON-DURABLE EQUIPMENT WITHIN THE MEANING OF CLAUSE 1 ( 1 ) NO 1 OF THE CONTRACT OR APPARATUS , INSTRUMENTS OR MACHINES WITHIN THE MEANING OF CLAUSE 5 ( 3 ).
12 IN THE APPLICANT ' S VIEW , THE RATIONALE FOR THAT DISTINCTION IS THAT RESEARCH PROJECTS MUST IN PRINCIPLE BE ENTRUSTED TO INSTITUTES WHICH ARE FULLY EQUIPPED AND WHICH DO NOT INTEND TO MAKE USE OF THE PROJECT ASSIGNED TO THEM IN ORDER TO OBTAIN SUCH APPARATUS AT THE COMMUNITY ' S EXPENSE . THE INSTITUTE SHOULD THEREFORE BE REIMBURSED 75% OF THE TOTAL COSTS OF THE MATERIAL NEEDED TO CARRY OUT THE PLANNED PROJECT AND 20% OF THE PURCHASE PRICE OF THE APPARATUS , MACHINES AND INSTRUMENTS WHICH HAVE TO BE ACQUIRED SPECIFICALLY FOR THE RESEARCH WORK IN QUESTION IN ORDER TO SUPPLEMENT THE INSTITUTE ' S NORMAL BASIC APPARATUS .
13 THE APPLICANT STATES THAT THE THREE INSTRUMENTS IN QUESTION WERE ALL RETURNED TO THE SUPPLIER ; TWO WERE EVEN RETURNED WITHOUT CONSIDERATION SINCE THEY COULD IN FUTURE BE USED ONLY FOR TEACHING PURPOSES AND , IN THE CASE OF THE THIRD , ITS RESIDUAL VALUE WAS DEDUCTED FROM THE LEASING COSTS . IN ITS VIEW , THEREFORE , THE INSTRUMENTS SHOULD BE CLASSIFIED AS NON-DURABLE EQUIPMENT WITHIN THE MEANING OF CLAUSE 1 ( 1 ) NO 1 OF THE CONTRACT AND , CONSEQUENTLY , THE LEASING COSTS SHOULD BE TAKEN INTO ACCOUNT IN THEIR ENTIRETY .
14 IN REPLY TO A QUESTION FROM THE COURT , THE APPLICANT HAS POINTED OUT THAT IT DOES NOT SEEK TO DISTINGUISH BETWEEN NON-DURABLE EQUIPMENT IN CLAUSE 1 ( 1 ) NO 1 OF THE CONTRACT AND COSTS OF MATERIAL IN CLAUSE 1 ( 1 ) NO 3 . IN ITS VIEW , CLAUSE 5 ( 3 ) OF THE CONTRACT CONSTITUTES A SPECIFIC PROVISION IN RELATION TO CLAUSE 1 ( 1 ) VIEWED AS A WHOLE AND IT THEREFORE MAKES NO DIFFERENCE WHATSOEVER WHETHER LEASING COSTS ARE TO BE CLASSIFIED AS COSTS OF MATERIAL OR UNDER THE HEADING OF NON-DURABLE EQUIPMENT .
15 FINALLY , THE APPLICANT CONTENDS THAT IN THE PAST THE COMMISSION RAISED NO OBJECTIONS TO BRINGING LEASING COSTS INTO ACCOUNT AS COSTS OF MATERIAL UNDER CONTRACTS CONCERNING VARIOUS RESEARCH PROJECTS WHICH HAD BEEN CONCLUDED BETWEEN THE PARTIES . THE APPLICANT THEREFORE CLAIMS THAT IT WAS ENTITLED TO EXPECT THE COMMISSION IN THIS CASE ALSO NOT TO ATTACH ANY IMPORTANCE TO THE FORM OF THE CONTRACT , WHETHER IT BE A CONTRACT OF SALE OR A LEASING CONTRACT .
16 ACCORDING TO THE COMMISSION , IT FOLLOWS DIRECTLY FROM THE WORDING OF CLAUSE ( 1 ) OF THE CONTRACT AND ARTICLE 2 ( 1 ) OF REGULATION NO 2935/79 THAT THE APPLICANT IS PRESUMED TO POSSESS THE BASIC TECHNICAL APPARATUS NEEDED TO CARRY OUT THE RESEARCH PROJECT IN QUESTION . THE ACQUISITION OF APPARATUS AND SO ON WITHIN THE MEANING OF CLAUSE 5 ( 3 ) OF THE CONTRACT THEREFORE RELATES TO INDIVIDUAL ITEMS WHICH ARE SPECIFICALLY REQUIRED AND ARE ESSENTIAL FOR CARRYING OUT THE RESEARCH WORK PROPOSED .
17 THE COMMISSION DOES NOT RULE OUT THE POSSIBILITY OF THE ACQUISITION OF APPARATUS UNDER CLAUSE 5 ( 3 ) BY MEANS OF A LEASING CONTRACT . AS FAR AS THE CHARGING OF COSTS TO THE CONTRACT IS CONCERNED , THE APPLICANT CANNOT EXPECT LEASING COSTS TO BE REIMBURSED IN ACCORDANCE WITH MORE FAVOURABLE CRITERIA THAN ARE LAID DOWN IN CLAUSE 5 ( 3 ) FOR THE PURCHASE OF EQUIPMENT . ACCORDING TO THE PRINCIPLE OF EQUAL TREATMENT , A CONTRACTING PARTY WHO PURCHASES INSTRUMENTS SHOULD NOT BE TREATED LESS FAVOURABLY THAN A CONTRACTING PARTY WHO LEASES THEM . FURTHERMORE , IT IS VERY DIFFICULT IN PRACTICE TO CHECK LEASING COSTS , WHICH ARE WHOLLY A MATTER FOR NEGOTIATION WITH THE LESSOR .
18 FINALLY , THE COMMISSION RECALLS THAT REGULATION NO 2935/79 WHICH , BY VIRTUE OF CLAUSE 14 OF THE CONTRACT , FORMS AN INTEGRAL PART THEREOF , DOES NOT CONTAIN ANY PROVISION RELATING TO THE REIMBURSEMENT OF LEASING COSTS AND IT DENIES ALLOWING SUCH COSTS TO BE CHARGED IN THE PAST . THE APPLICANT SHOULD THEREFORE HAVE ASKED THE COMMISSION BEFOREHAND ABOUT THE TREATMENT OF LEASING COSTS . HAVING FAILED TO DO SO , THE APPLICANT SHOULD BEAR THE CONSEQUENCES .
19 IN THOSE CIRCUMSTANCES , THE COMMISSION STATES THAT NEITHER THE CONTRACT , NOR REGULATION NO 2935/79 , NOR ANY OTHER GROUNDS SUPPORT THE CONCLUSION THAT THE APPLICANT IS ENTITLED TO REIMBURSEMENT OF THE SUM WHICH IT CLAIMS IN RESPECT OF LEASING COSTS .
20 IN ORDER TO RESOLVE THIS DISPUTE , IT SHOULD IN THE FIRST PLACE BE NOTED THAT THE COSTS AT ISSUE WERE NOT INCLUDED EITHER UNDER THE HEADING OF NON-DURABLE EQUIPMENT , OR IN THE APPLICANT ' S PROPOSALS , OR IN THE CONTRACT , OR EVEN IN THE STATEMENT OF EXPENDITURE SUBMITTED BY THE APPLICANT FOLLOWING COMPLETION OF THE RESEARCH WORK . THEY MUST THEREFORE , BY THE APPLICANT ' S OWN ADMISSION , BE CLASSIFIED UNDER THE HEADING OF COSTS OF MATERIAL ( ' SACHKOSTEN ' ).
21 THAT ITEM MUST BE INTERPRETED IN THE LIGHT OF THE GENERAL CLAUSE RELATING TO MATERIALS ( ' SACHMITTEL ' ), NAMELY CLAUSE 5 OF THE CONTRACT . IN PROVIDING THAT THE TENDERER OR THE SUBCONTRACTOR IS TO USE THE MATERIALS WHICH ARE NECESSARY TO ENSURE THE PROPER PERFORMANCE OF THE CONTRACT , CLAUSE 5 ( 1 ) IS BASED ON THE ASSUMPTION THAT , AS A GENERAL RULE , THE INSTITUTE ALREADY HAS THE REQUISITE INSTRUMENTS AT ITS DISPOSAL AND THAT , CONSEQUENTLY , THE COST OF ACQUIRING SUCH INSTRUMENTS CANNOT BE CHARGED TO THE CONTRACT . THAT INTERPRETATION IS CONFIRMED BY CLAUSE 5 ( 3 ) WHICH PROVIDES , SUBJECT TO CERTAIN CONDITIONS , THAT THE COST OF ACQUIRING INSTRUMENTS SPECIFICALLY NEEDED TO CARRY OUT THE RESEARCH WORK PROPOSED MAY BE CHARGED TO THE CONTRACT ONLY UP TO A FIXED PROPORTION OF 20% OF THE PURCHASE PRICE .
22 AS THE APPLICANT HAS CONTENDED , CLAUSE 5 ( 3 ) REFERS IN PARTICULAR TO THE ACQUISITION OF INSTRUMENTS THAT OUTLAST THE WORK SPECIFIED IN THE CONTRACT . THE EXTREMELY BROAD WORDING ( ' APPARATUS , INSTRUMENTS , MACHINES AND SO ON ' ) AND THE CHOICE OF A FIXED RATE OF REIMBURSEMENT DEMONSTRATE THAT CLAUSE 5 ( 3 ) IS A GENERAL CLAUSE WHICH MUST BE APPLIED IN ALL CASES IN WHICH THE ACQUISITION OF INSTRUMENTS IS NOT THE SUBJECT OF A SPECIFIC CLAUSE .
23 THE ONLY RELEVANT SPECIFIC CLAUSE CONTAINED IN THE CONTRACT IN QUESTION IS THAT CONCERNING THE HEADING OF NON-DURABLE EQUIPMENT , AND ITS VERY WORDING CLEARLY SHOWS THAT THE COSTS WHICH IT COVERS MAY BE CHARGED TO THE CONTRACT IN THEIR ENTIRETY . AS HAS ALREADY BEEN ESTABLISHED , THE COSTS AT ISSUE DO NOT FALL UNDER THAT HEADING .
24 THAT INTERPRETATION OF THE CONTRACT IS NOT CALLED IN QUESTION BY THE FACT THAT THE THREE MEASURING INSTRUMENTS WERE USED UNDER LEASING CONTRACTS . IN VIEW OF THE FACT THAT NEITHER THE COMMUNITY RULES NOR THE CONTRACT MADE PROVISION FOR THE USE OF INSTRUMENTS UNDER A CONTRACT OF THAT KIND AND THAT IT HAS NOT BEEN ESTABLISHED THAT THE COMMISSION HAD AGREED TO REIMBURSE LEASING COSTS INCURRED UNDER RESEARCH CONTRACTS PERFORMED BY THE APPLICANT IN THE PAST , THE LATTER SHOULD HAVE RAISED THE PROBLEM WITH THE COMMISSION IN DUE TIME . IN THAT CASE , THE COMMISSION WOULD HAVE BEEN ABLE TO CHECK THE TERMS OF THE LEASING CONTRACTS , ASCERTAIN THE USEFUL LIFE OF THE INSTRUMENTS AND , IF NECESSARY , ADJUST THE RESEARCH CONTRACT TO THE NEW SITUATION WITH THE APPLICANT ' S CONSENT . SINCE THE APPLICANT DID NOT RAISE THE PROBLEM IN DUE TIME , IT HAS NO RIGHT TO THE REIMBURSEMENT OF THE COSTS AT ISSUE ON ANY TERMS OTHER THAN THOSE LAID DOWN IN CLAUSE 5 ( 3 ) OF THE CONTRACT .
25 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION MUST BE DISMISSED AS UNFOUNDED .
COSTS
26 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION ;
( 2 ) ORDERS THE APPLICANT TO PAY THE COSTS .
