Court of Justice of the European Communities (including Court of First Instance Decisions)

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Agriculture - Common agricultural policy - Food aid - Implementation - Tendering procedure - System of securities - Delay in delivery - Penalty - Withholding of part of the delivery security at the time of its release - Withholding of part of the amount payable for the supply - Unlawful
(Commission Regulation (EEC) No 2200/87, Arts 18(2) and 22(2) )

As the Court has already held (see judgment in Case C-172/89 Vandemoortele v Commission [1990] ECR I-4677), a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis. It is therefore necessary to annul the Commission' s decision withholding part of the amount due to a tenderer in payment of supply in respect of food aid on the grounds of delay in delivery, when Article 18(2) of Regulation No 2200/87 provides for the withholding of part of that amount only where the goods or packaging do not correspond to the requirements and Article 22(2) of the same regulation provides for the possibility, which the Commission did not make use of in this case, of penalizing a delay in delivery by withholding part of the security on its release.

In Case C-226/89,
Haniel Spedition GmbH, a company established under German law with its registered office in Duisbourg (Federal Republic of Germany), represented by Dirk Schroeder, Rechtsanwalt, Cologne, with an address for service in Luxembourg at the Chambers of Loesch & Wolter, 8 rue Zithe,
applicant,
v
Commission of the European Communities, represented by its Legal Adviser, Dierk Booss, and Klaus-Dieter Borchardt, a member of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Guido Berardis, also a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,
defendant,
APPLICATION for the annulment of the Commission decision of 8 May 1989 addressed to the applicant and relating to amounts withheld pursuant to
Article 22(2)(b) of Commission Regulation (EEC) No 2200/87 of 8 July 1987 and for payment to the applicant of ECU 55 451.50 together with default interest from 12 May 1989, as provided for under the second subparagraph of Article 18(6) of Regulation (EEC) No 2200/87,
THE COURT (Third Chamber)
composed of: J. C. Moitinho de Almeida, President of Chamber, F. Grévisse and M. Zuleeg, Judges,
(The grounds of the judgment are not reproduced.)

hereby:
(1) Annuls the Commission decision of 8 May 1989, notified by way of a routing slip dated 12 May 1989, to withold ECU 55 451.50 from the amount due to the applicant for a supply in respect of food aid;
(2) Orders the Commission to pay Haniel Spedition GmbH, Duisbourg, the sum of ECU 55 451.50 together with default interest from 12 May 1989 at the Commission' s normal rate;
(3) Orders the Commission to pay the costs.