5As regards admissibility, the Court held as follows:50 The fourth paragraph of Article 173 of the FC Treaty (now, after amendment, Article 230 EC) confers on natural or legal persons the right to bring an action for annulment against decisions addressed to them and against decisions which, although in the form of a regulation or a decision addressed to another person, are of direct and individual concern to them.51 It is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned, for the purpose of that provision, only if the decision at issue affects them by reason of certain attributes peculiar to them or by reason of factual circumstances in which they are distinguished from all other persons, and by virtue of those factors distinguishes them individually in the same way as the person addressed (judgment in Case 25/62 Plaumann v Commission [1963] ECR 95; see, for example, judgment in Case T-86/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd Fluggesellschaft v Commission [1999] ECR II-179, paragraph 42, and the case-law cited therein).52 It is common ground in this case that the applicant took part in the bidding for Lots Nos 1 and 2, and that Lot No 1 was awarded to Trento Frutta.53 Moreover, the Commission does not dispute the fact that its Memorandum No 10663 of 6 March 1996, cited above, contains elements which do not correspond to the conditions laid down in the notice of invitation to tender provided for by Regulation No 228/96, in so far as it provides, inter alia, for the substitution of peaches for apples and oranges as the means of payment for the supplies from Trento Frutta. That memorandum therefore amends the arrangements for payment prescribed for the different lots.54 The amendment of the arrangements for payment prescribed for the different lots was confirmed by the Decision of 14 June 1996 with regard to all the successful tenderers. Subsequently, the applicant asked the Commission to reconsider that decision. For that purpose, a meeting between the staff of DG VI and the applicant took place on 26 July 1996, following which the applicant sent to the Commission Technical Report No 94 (paragraphs 27 to 28 above).55 In the light of the new information brought to its attention in this way and of a reconsideration of the situation as a whole, in particular of the level of the price of peaches on the Community market recorded by its staff in mid-August 1996 (see the DG VI working document, Annex 1 1 to the defence), the Commission adopted the contested Decision of 6 September 1996, laying down new coefficients of equivalence between peaches, on the one hand, and apples and oranges, on the other.56 Consequently, the contested decision must be regarded as an independent decision, taken following a request from the applicant, on the basis of new information, and it amends the conditions of the invitation to tender in that itprovides, with different coefficients of equivalence, for the substitution of peaches for apples and oranges as a means of payment to the successful tenderers in spite of the contacts which took place in the interim between the parties.57 In those circumstances, it must be held that the applicant is individually concerned by the contested decision. It is concerned, first, in its capacity as unsuccessful tenderer in so far as one of the important conditions of the invitation to tender — that concerning the means of payment for the supplies at issue — was later amended by the Commission. Such a tenderer is not individually concerned merely by the Commission decision which determines the fate, be it favourable or unfavourable, of each of the tenders submitted in answer to the notice of invitation to tender ([Clase 92/781 Simmenthal v Commission [[1979) ECR 777,] paragraph 25). It also retains an individual interest in ensuring that the conditions of the notice of invitation to tender are complied with at the stage when the award itself is implemented. The fact that the Commission did not point out in the notice of invitation to tender the possibility for successful tenderers to obtain fruit other than those prescribed as payment for their supplies denied the applicant the chance of submitting a tender different from that which it had submitted, and of thus having the same opportunity as Trento Frutta.58 Second, in the particular circumstances of the case, the applicant is individually concerned by the contested decision because it was adopted after a reconsideration of the situation as a whole, undertaken at the applicant's request and in the light, in particular, of the additional information which it presented to the Commission.59 The applicant is also directly concerned by the contested decision since the Commission did not leave any margin of discretion to the national authorities in the matter of the methods for implementing that decision (see, for example, the judgment in Joined Cases 41/70, 42/70, 43/70, 44/70 International Fruit Company and Others v Commission [1971] ECR 411, paragraphs 25 to 28).60 Furthermore, the argument based on the fact that the applicant did not challenge the Decision of 14 June 1996 within the prescribed time-limit must be rejected, since the contested decision cannot be regarded as a measure which is merely confirmatory of that decision. As stated above, the Commission agreed, at the applicant's request, to reconsider the Decision of 14 June 1996, and the contested decision was adopted following that reconsideration. Furthermore, the contested decision lays down different coefficients of equivalence and is based on new evidence. In those circumstances, the applicant's action cannot be declared inadmissible on that basis (see judgments in Case T-82/92 Cortes Jimenez and Others v Commission [1994] ECRSC II-237, paragraph 14; Case T-331/94 IPK v Commission [1997] ECR II-1665, paragraph 24; Case T-130/96 Aquilino v Council [1998] ECRSC II-1017, paragraph 34; and Case T-100/96 Vicente-Nuñez v Commission [1998] ECRSC II-1779, paragraphs 37 to 42).61 The argument according to which the applicant has no interest in bringing proceedings since the sole effect of annulling the contested decision would be to reinstate the coefficients laid down in the Decision of 14 June 1996, which are less favourable to the applicant, must also be rejected.62 It should not be presumed, for the purpose of determining whether the present action is admissible, that a judgment annulling the Decision of 6 September 1996 would have the effect merely of reviving the coefficients of equivalence laid down by the Decision of 14 June 1996, having regard, in particular, to the Commission's obligation to take the necessary measures to comply with the present judgment in accordance with Article 176 of the EC Treaty (now Article 233 EC) (see the judgment in Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris v Commission [1988] ECR 2181, paragraphs 27 to 32).63 In any event, it is clear from paragraph 32 of Simmenthal v Commission that, even where a decision to award a contract has been fully implemented for the benefit of other competitors, a tenderer retains an interest in the annulment of such a decision; such interest consists either in the tenderer's being properly restored by the Commission to his original position or in prompting the Commission to make suitable amendments in the future to the system of invitations to tender if that system is found to be incompatible with certain legal requirements. That case-law is applicable to the present case, particularly since it is common ground that the operations prescribed by the notice of invitation to tender at issue had not yet been fully implemented at the time when the contested decision was adopted.64 It follows that the application is admissible.’
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