| | ECT-230Annulment cases    
| ECT | Article 230 | The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-àvis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.
The Court of Justice shall have jurisdiction under the same conditions in actions brought by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives.
Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. |
| Case | Pte | Ref | Text | T-185/08-A
VDH | 9-17 | RC1-3.2
ECT-230
ECT-232 | 9 S’agissant de la recevabilité du chef de conclusions visant à la constatation d’une carence de la part de la Commission, il importe de souligner que les articles 230 CE et 232 CE ne forment que l’expression d’une seule et même voie de droit. Il en résulte que, de même que l’article 230, quatrième alinéa, CE permet aux particuliers de former un recours en annulation contre un acte d’une institution dont ils ne sont pas les destinataires dès lors que cet acte les concerne directement et individuellement, l’article 232, troisième alinéa, CE doit être interprété comme leur ouvrant également la faculté de former un recours en carence contre une institution qui aurait manqué d’adopter un acte qui les aurait concernés de la même manière (arrêts de la Cour du 26 novembre 1996, T. Port, C-68/95, Rec. p. I-6065, point 59, et du Tribunal du 10 mai 2006, Air One/Commission, T-395/04, Rec. p. II-1343, point 25).
10 Dans la présente affaire, il convient donc d’apprécier si l’acte juridique à propos duquel les requérantes reprochent à la Commission sa carence les aurait directement et individuellement concernées. Eu égard aux circonstances de l’affaire, il convient d’abord d’apprécier le critère de l’intérêt direct.
11 Il est de jurisprudence constante que, pour concerner directement un requérant privé, au sens de l’article 230, quatrième alinéa, CE, l’acte communautaire entrepris doit produire directement des effets sur la situation juridique de l’intéressé et sa mise en oeuvre doit revêtir un caractère purement automatique et découler de la seule réglementation communautaire, sans application d’autres règles intermédiaires (voir, en ce sens, arrêts de la Cour du 5 mai 1998, Dreyfus/Commission, C-386/96 P, Rec. p. I-2309, point 43, et du Tribunal du 13 décembre 2000, DSTV/Commission, T-69/99, Rec. p. II-4039, point 24).
12 En l’espèce, il résulte de l’article 3 de la directive 89/665/CEE que la procédure qui y est prévue est une procédure purement bilatérale entre la Commission et l’État membre concerné. La notification à laquelle procède la Commission en vertu de l’article 3, paragraphe 2, de cette directive, et que, dans leurs deuxième et quatrième chefs de conclusions, les requérantes lui reprochent de n’avoir pas effectuée, n’a aucune incidence sur leur situation juridique mais oblige simplement l’État membre concerné à faire certaines communications à la Commission dans un délai de 21 jours calendaires.
13 La notification prévue à l’article 3, paragraphe 2, de la directive 89/665/CEE n’impose au surplus à l’État membre concerné aucune obligation de mise en oeuvre purement automatique, mais lui laisse un pouvoir de choix quant à son action future. Ainsi en effet qu’il ressort du paragraphe 3 de cette disposition, l’État membre auquel la Commission adresse une notification en vertu du paragraphe 2 dispose de trois possibilités: soit confirmer que la violation a été corrigée, soit expliquer les raisons pour lesquelles celle-ci n’a pas été corrigée, soit encore communiquer une notification indiquant que la procédure de passation de marché a été suspendue. Il résulte en particulier du paragraphe 3, sous b), en combinaison avec le paragraphe 4, que l’État membre concerné n’est pas tenu de prendre d’autres mesures lorsque la violation alléguée fait déjà l’objet d’un recours juridictionnel en vertu de l’article 2, paragraphe 9. Or c’est précisément le cas en l’espèce, ainsi que l’admettent elles-mêmes les requérantes au point 22 de leur requête.
14 Quant à la simple « mise en oeuvre » du mécanisme correcteur prévu à l’article 3 de la directive 89/665/CEE, que demandent les requérantes par leurs premier et troisième chefs de conclusions, elle ne les concerne a fortiori pas directement, puisqu’elle n’entraîne à elle seule aucun effet juridique. De tels effets n’interviennent au contraire qu’à la suite d’une notification concrète opérée en vertu du paragraphe 2 de cette disposition.
15 Les requérantes soutiennent être directement et individuellement concernées par cette mise en oeuvre du mécanisme correcteur qu’elles demandent, au motif qu’elles conservent un vif intérêt dans l’acquisition des terrains auprès de la ville pour y construire un supermarché, ce qu’elles auraient d’ailleurs dit et répété à la ville de Stolberg. Il existerait ainsi une situation particulière qui les caractériserait par rapport à toute autre personne. Après épuisement de leurs possibilités résidant dans les procédures de recours engagées devant la chambre des marchés publics de la Bezirksregierung Köln, elles ne pourraient obtenir un arrêt des travaux, ainsi que l’interdiction de la poursuite du contrat posant des obligations de construction et du contrat d’entreprise générale, que par l’intervention de la Commission. Elles seraient donc particulièrement concernées par l’intervention qu’elles sollicitent.
16 Ces arguments ne sont toutefois pas de nature à démontrer que les requérantes sont directement concernées par une notification de la Commission au titre de l’article 3, paragraphe 2, de la directive 89/665/CEE.
17 En effet, les requérantes font certes valoir, sur un plan formel, qu’elles sont directement et individuellement concernées. Leurs arguments se rapportent toutefois uniquement, de par leur contenu, au critère de l’intérêt individuel et non à celui de l’intérêt direct, comme il ressort d’ailleurs de la formulation qu’elles emploient, selon laquelle il existerait « ainsi » une situation particulière qui les caractériserait par rapport à toute autre personne. | T-54/08-R
T-87/08-R
T-88/08-R
T91/08-R
T-92/08-R
T-93/08-R
Cyprus | 50-52 | ECT-230-impl
CFIR-104.1-impl | 50 Selon une jurisprudence constante, la recevabilité du recours au principal ne doit pas, en principe, être examinée dans le cadre d’une procédure de référé sous peine de préjuger l’affaire au principal. Ce n’est que quand l’irrecevabilité manifeste du recours au principal sur lequel se greffe la demande en référé est soulevée qu’il peut s’avérer nécessaire d’établir l’existence de certains éléments permettant de conclure, à première vue, à la recevabilité d’un tel recours [voir, en ce sens, ordonnance du président de la Cour du 12 octobre 2000, Federación de Cofradías de Pescadores de Guipúzcoa e.a./Conseil, C-300/00 P(R), Rec. p. I-8797, point 34 ; ordonnances du président du Tribunal du 15 janvier 2001, Stauner e.a./Parlement et Commission, T-236/00 R, Rec. p. II-15, point 42, et du 8 août 2002, VVG International e.a./Commission, T-155/02 R, Rec. p. II-3239, point 18], un tel examen de la recevabilité du recours au principal étant nécessairement sommaire, compte tenu du caractère urgent de la procédure de référé (ordonnance Federación de Cofradías de Pescadores de Guipúzcoa e.a./Conseil, précitée, point 35).
51 En effet, dans le cadre d’une demande en référé, la recevabilité du recours au principal ne peut être appréciée que de prime abord, et le juge des référés ne doit déclarer cette demande irrecevable que si la recevabilité du recours au principal peut être totalement exclue. En effet, statuer sur la recevabilité au stade du référé lorsque celle-ci n’est pas, prima facie, totalement exclue reviendrait à préjuger la décision du Tribunal statuant au principal (ordonnances du président du Tribunal Petrolessence et SG2R/Commission, point 49 supra, point 17 ; du 19 décembre 2001, Government of Gibraltar/Commission, T-195/01 R et T-207/01 R, Rec. p. II-3915, point 47, et du 7 juillet 2004, Região autónoma dos Açores/Conseil, T-37/04 R, Rec. p. II-2153, point 110).
52 En l’espèce, la Commission, loin de dénoncer l’irrecevabilité manifeste des recours en annulation sur lesquels se greffent les demandes en référé, s’est bornée à exprimer ses doutes à cet égard, tout en se réservant le droit de soulever la question de la recevabilité dans le cadre des procédures au principal. Dans ces circonstances, et eu égard au contenu des actes attaqués, il n’y a pas lieu pour le juge des référés d’examiner dans le cadre de la présente procédure de référé les doutes avancés par la Commission au regard de la recevabilité des recours au principal (voir, en ce sens, ordonnance du président de la Cour du 17 mars 1986, Royaume-Uni/Parlement, 23/86 R, Rec. p. 1085, point 21). | T-41/08-R
Vakakis International | 33-39 | ECT-230
CFIR-104.1 | 33 By virtue of the first subparagraph of Article 104(1) of the Rules of Procedure, an application to suspend the operation of any measure is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. This rule requires that the main action from which the application for interim measures is derived may be effectively examined by the Court of First Instance.
34 According to settled case-law the issue of the admissibility of the main application should not, in principle, be examined in proceedings relating to an application for interim measures. Where, however, as in this case, it is contended that the main application from which the application for interim measures is derived is manifestly inadmissible, it may prove necessary to establish the existence of certain factors which would justify the prima facie conclusion that the main application is admissible (orders of the President of the Court of Justice in Case 221/86 R Groupe des droites européennes and Front national v Parliament [1986] ECR 2969, paragraph 19, and in Case 376/87 R Distrivet v Council [1988] ECR 209, paragraph 21; order of the President of the Court of First Instance in Case T-222/99 R Martinez and de Gaulle v Parliament [1999] ECR II-3397, paragraph 60).
35 In this case, the President of the Court considers that, based on the observations of the Commission, it is necessary to ascertain whether the application for annulment is likewise manifestly inadmissible.
36 The fourth paragraph of Article 230 EC provides that any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
37 The applicant is seeking annulment of decisions which are either directly addressed to it, or are addressed to it in its role as member and representative of a consortium, whose membership is identifiable in a closed class of seven undertakings.
38 Without prejudice to whether each of the two decisions in question constitutes a challengeable act for the purposes of Article 230 EC, therefore, such decisions, which, together, have the effect of excluding Vakakis and the other six members of the consortium from the disputed tender procedure, are prima facie liable to be of direct and individual concern to Vakakis.
39 Accordingly, the President finds that, as far as the locus standi of the applicant is concerned, prima facie the application for annulment is not manifestly inadmissible and that Vakakis must accordingly be allowed to bring the present proceedings for interim measures before this Court. | T-333/07
Entrance Services | 77-78 | ECT-230-impl | 77 En conclusion, dans ces circonstances, il y a lieu de considérer que le Parlement ne pouvait s’arrêter à la seule consultation de la base de données et à la déclaration sur l’honneur produite par Kone afin d’examiner si les faits portés à sa connaissance par la requérante constituaient une faute grave en matière professionnelle au sens du règlement financier. Partant, il a violé l’article 93, paragraphe 1, sous c), et l’article 94 du règlement financier et la décision attaquée doit être annulée.
78 À titre surabondant, il y a lieu d’examiner les deuxième et troisième moyens avancés par la requérante. | T-411/06
Sogelma | 33-37 | ECT-230 | 33 First, it is clear that agencies such as the EAR established on the basis of secondary legislation are not among the Community institutions listed in the first paragraph of Article 230 EC.
34 Furthermore, Regulation No 2667/2000, as amended, which states only, in Articles 13 and 13a, that the Court has jurisdiction in disputes relating to compensation in the case of the EAR’s noncontractual liability and to EAR decisions relating to access to documents taken pursuant to Article 8 of Regulation No 1049/2001, does not provide that the Court has jurisdiction to hear actions for annulment against other decisions taken by the EAR.
35 None the less, those considerations do not preclude review by the Court of First Instance, under Article 230 EC, of the legality of EAR acts which are not referred to in Articles 13 and 13a of Regulation No 2667/2000.
36 The Court of Justice has held, in paragraph 23 of the Les Verts case (Case 294/83 ‘Les Verts’ v Parliament [1986] ECR 1339), that the European Community is a community based on the rule of law, and that the Treaty has established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions. The general scheme of the Treaty is to make a direct action available against all measures adopted by the institutions which are intended to have legal effects (see Les Verts, paragraph 24, and case-law cited). The Court of Justice concluded in that case that an action for annulment could be brought against measures of the European Parliament intended to have legal effects vis-à-vis third parties, even though Article 173 of the EC Treaty (now, after amendment, Article 230 EC), in the version applicable at the material time, referred only to acts of the Council and the Commission. The Court stated that an interpretation of that article which excluded measures adopted by the European Parliament from those which could be contested would lead to a result contrary both to the spirit of the Treaty as expressed in Article 164 of the EC Treaty (now Article 220 EC) and to its system (Les Verts, paragraph 25).
37 The general principle to be elicited from that judgment is that any act of a Community body intended to produce legal effects vis-à-vis third parties must be open to judicial review. It is true that Les Verts, paragraph 24, refers only to Community institutions and the EAR is not one of the institutions listed in Article 7 EC. None the less, the situation of Community bodies endowed with the power to take measures intended to produce legal effects vis-à-vis third parties is identical to the situation which led to the Les Verts judgment: it cannot be acceptable, in a community based on the rule of law, that such acts escape judicial review. | T-411/06
Sogelma | 38 | ECT-230 | 38 It must be noted that the cancellation of a tender procedure is an act which, as a general rule, may be the subject of an action under Article 230 EC (see, to that effect, order of the Court of 19 October 2007 in Case T-69/05 Evropaïki Dinamiki v EFSA, not published in the ECR, paragraph 53). It is an act which adversely affects the applicant and brings about a distinct change in his legal position, since the result is that the applicant can no longer expect to be awarded the contract for which he has submitted a tender. | T-411/06
Sogelma | 39-40 | ECT-230 | 39 It must also be borne in mind that, under Articles 1 and 2 of Regulation No 2667/2000, as amended, the Commission may delegate to the EAR implementation of the Community assistance provided for in Article 1 of Regulation No 2666/2000 to Serbia and Montenegro, and, in particular, make the EAR responsible for preparing and evaluating invitations to tender and awarding contracts. As is stated by the Commission, the EAR therefore takes decisions which the Commission itself would have taken if it had not delegated those powers to the EAR.
40 Decisions which the Commission would have taken cannot cease to be acts open to challenge solely because the Commission has delegated powers to the EAR, otherwise there would be a legal vacuum. | T-411/06
Sogelma | 41 | ECT-230 | 41 The Court must reject the EAR’s argument that the rights of tenderers are protected by the procedure laid down in point 37 of the Instructions to tenderers on the ground that they could have recourse to procedures established by the Commission, whose acts are open to challenge under Article 230 EC. It is clear that point 37 of the Instructions to tenderers does not provide for the Commission to adopt, in the course of the procedure, a decision which is open to judicial review. It must further be observed that the Commission stated, in reply to a written question put by the Court, that it had not set up any specific procedure to deal with any complaints which did not reach an amicable settlement under point 37 of the Instructions to tenderers. | T-411/06
Sogelma | 42 | ECT-230 | 42 Lastly, the Court must reject the EAR’s argument that an action against its acts could be brought before a domestic court. While it is true, in the present case, that, according to the Procurement Notice and point 2 of the Instructions to tenderers, the contracting authority is the Serbian Ministry of Capital Investments, it remains the case that it is the EAR, and not a domestic authority, which took the decision to cancel the tender procedure. It is clear that no domestic court has jurisdiction to assess the legality of that decision. | T-411/06
Sogelma | 43-57 | ECT-230 | 43 It follows that decisions taken by the EAR in the context of public procurement procedures and intended to produce legal effects vis-à-vis third parties are acts open to challenge before the Community judicature.
44 No doubt is cast on that conclusion by the case-law referred to by the EAR in support of its defence.
45 As regards Case C-160/03 Spain v Eurojust [2005] ECR I-2077, it is true that the Court of Justice there held that the acts contested were not included in the list of acts the legality of which the Court may review under Article 230 EC (paragraph 37). However, in the following paragraph of that judgment, the Court of Justice also held that Article 41 EU did not provide for the application of Article 230 EC to the provisions on police and judicial cooperation in criminal matters in Title VI of the Treaty on European Union, the jurisdiction of the Court in such matters being defined in Article 35 EU, to which Article 46(b) EU refers. The Court of Justice also held, in paragraphs 41 and 42 of that judgment, that the acts contested in that case were not exempt from judicial review.
46 Similarly, in the order in Case T-148/97 Keeling v OHIM [1998] ECR II-2217, the Court of First Instance did not confine itself to stating, in paragraph 32, that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was not one of the institutions of the Community listed in Article 4 of the EC Treaty (now Article 7 EC) and was not mentioned in the first paragraph of Article 173 of the EC Treaty, but also observed, in paragraph 33, that other remedies were potentially available against the contested decision of the President of OHIM, mentioning, inter alia, Article 179 of the EC Treaty (now Article 236 EC). That order therefore does not preclude an action lying under Article 230 EC against a decision of a Community body not mentioned in that article.
47 As regards the order of 1 March 2007 in Joined Cases T-311/06 R I, T-311/06 R II, T-312/06 R and T-313/06 R FMC Chemical and Others v EFSA, not published in the ECR, it must be pointed out that that order relates to an action brought against an opinion of the European Food Safety Authority which did not produce binding legal effects. It cannot be concluded from that order that an action brought against an act of a Community body not mentioned by Article 230 EC is inadmissible.
48 Consequently, the case-law relied on by the EAR does not affect the finding that an act emanating from a Community body intended to produce legal effects vis-à-vis third parties cannot escape judicial review by the Community judicature.
49 It must moreover be observed that, as a general rule, actions must be directed against the body which enacted the contested measure, in other words, the Community institution or body from which the decision emanated.
50 In that context, it must be pointed out that the EAR is a Community body endowed with legal personality and established by a regulation with the aim of implementing Community assistance inter alia to Serbia and Montenegro (see Articles 1 and 3 of Regulation No 2667/2000). For that purpose, Articles 1 and 2 of Regulation No 2667/2000 expressly permit the Commission to delegate to the EAR the implementation of that assistance, including preparing and evaluating invitations to tender and awarding contracts. The EAR therefore itself has the power, conferred on it by the Commission, to implement programmes of Community assistance.
51 In the present case, it is the EAR which took the decision to cancel the tender procedure, by virtue of the powers delegated by the Commission in accordance with Regulation No 2667/2000. The Commission played no part in the decision-making process. Accordingly, it is clear that the EAR is the body which enacted the contested measure. Consequently, the applicant may institute proceedings before the Court of First Instance against the EAR in that capacity.
52 Furthermore, it must be pointed out that it is clear from Article 13(2) and from Article 13a(3) of Regulation No 2667/2000 that it is for the EAR to defend itself in a court of law in disputes relating to whether it has incurred non-contractual liability and in disputes relating to decisions which it has taken pursuant to Article 8 of Regulation No 1049/2001.
53 In those circumstances, it cannot be considered that other decisions taken by the EAR ought not also to be defended in a court of law by the EAR.
54 It is true that, in certain cases, the Community judicature has held that acts adopted pursuant to delegated powers were to be imputed to the delegating institution, which was obliged to defend in a court of law the act in question. However, in those cases, the circumstances were not comparable to those of the present case.
55 As regards the order of 5 December 2007 in Case T-133/03 Schering-Plough v CommissionandEMEA (not published in ECR), relating to an action for annulment directed against an act of the European Agency for the Evaluation of Medicinal Products (EMEA), the Court there stated that Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products (OJ 1993 L 214, p. 1) provided for only advisory powers for the EMEA. The Court thereby concluded that the refusal by the EMEA of an application for variation of a marketing authorisation had to be deemed to emanate from the Commission itself and therefore that any action had to be directed against the Commission (order in Schering-Plough v Commission and EMEA, paragraphs 22 and 23). In the present case, it is clear that the powers of the EAR are not advisory, since it has the responsibility, delegated to it by the Commission, of preparing and evaluating invitations to tender and awarding contracts.
56 As regards Joined Cases T-369/94 and T-85/95 DIR International Film and Others v Commission [1998] ECR II-357, relating to an action for annulment directed against acts of the European Film Distribution Office (EFDO), it must be noted that the Court stated that, under Article 7(1) of Decision 90/685/EEC concerning the implementation of an action programme to promote the development of the European audiovisual industry (MEDIA) (1991 to 1995) (OJ 1990 L 380, p. 37), the Commission was responsible for the implementation of the MEDIA programme. The Court then pointed out that the relevant agreement between the Commission and the EFDO on the financial implementation of the MEDIA programme made any decision in that area subject in practice to the prior agreement of the Commission’s representatives, and that decisions taken by the EFDO on funding applications made under the MEDIA programme were accordingly imputable to the Commission, which was therefore responsible for their content and could be called upon to defend them in court (paragraphs 52 and 53 of that judgment). In the present case, it is clear that decisions taken by the EAR in relation to procurement are not subject to the prior approval of the Commission.
57 It follows from all of the foregoing that the Court of First Instance has jurisdiction to hear the present action and that the applicant has properly directed that action against the EAR. | T-411/06
Sogelma | 60-68 | ECT-230 | 60 It is clear, first, that the wording of point 37.1 of the Instructions to tenderers does not specify that an administrative complaint is obligatory. It must further be observed that the fact that point 37 of the Instructions to tenderers does not lay down any time-limit for bringing an administrative complaint militates against an interpretation of that point as being designed to introduce the requirement of a prior administrative complaint.
61 Moreover, point 37.2 of the Instructions to tenderers provides only that the Commission is to facilitate an amicable solution between the complainant (tenderer) and the EAR, not that it must in that context adopt a decision which may be open to judicial review.
62 It must further be pointed out that Article 37.3 also does not provide that completion of the procedure concerned is a prerequisite of bringing an action before the Community judicature. That point states that ‘[i]f the above procedure fails, the tenderer may have recourse to procedures established by the European Commission’. In that context, it must be borne in mind that the Commission has not established any specific procedure for dealing with any complaints which have not given rise to an amicable settlement under point 37 of the Instructions to tenderers (see paragraph 41 above). There is therefore no ‘procedure established by the Commission’ completion of which could be considered a prerequisite of bringing an action before the Community judicature.
63 The EAR claims that use of the word ‘may’ in point 37.1 of the Instructions to tenderers cannot be interpreted to mean that that procedure is optional. In that regard, it is true that that word is also used in regulations which provide that a prior administrative procedure is a prerequisite of bringing an action before the Community judicature. That applies, for example, to Article 68 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1), to which the EAR refers, and which states ‘[a]ny natural or legal person may appeal’ against relevant decisions of the Community Plant Variety Office. It must, however, be noted that that regulation expressly lays down, in Article 69, a time-limit for filing a notice of appeal against a decision of the Community Plant Variety Office. In addition, it expressly provides, in Article 73(1) that an appeal lies from decisions of the Board of Appeal of that Office to the Community judicature and lays down a time-limit for lodging such an appeal. Similarly, while Article 90(2) of the Staff Regulations of Officials of the European Economic Community provides that any person to whom those Regulations apply ‘may’ submit to the appointing authority a complaint against an act adversely affecting him, it also establishes a time-limit for doing so. Furthermore, Article 91(2) of those Regulations expressly provides that an appeal to the Community judicature is to lie only if the appointing authority has previously had a complaint submitted to it.
64 By contrast, point 37 of the Instructions to tenderers cannot subject the admissibility of an action to an obligatory prior administrative complaint, since the wording is not sufficiently clear.
65 For the sake of completeness, it must be stated that the EAR cannot, without any basis in law, introduce a condition governing admissibility which goes beyond those laid down in Article 230 EC.
66 In this context, the Court must reject the EAR’s argument that point 2.4.16 of the ‘Practical Guide to contract procedures for EC external actions’ represents such a legal basis. It need merely be pointed out that such a Practical Guide is a working tool which explains the procedures applying in a particular area and which cannot, as such, constitute a basis in law for the introduction of an obligatory prior administrative complaint.
67 The Court must also reject the EAR’s argument that such a legal basis is provided by Article 56(1) (b) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1, the ‘Financial Regulation’), under which decisions entrusting executive tasks to the agencies referred to in Article 54(2) of that regulation, must comprise an effective internal control system for management operations. On that point, it must be observed that that provision relates to budgetary matters and manifestly does not apply to the legal remedies available to tenderers. It cannot therefore constitute a basis in law for the introduction of a condition governing the admissibility of appeals by tenderers, namely an obligatory prior administrative complaint.
68 It follows from the foregoing that the plea of inadmissibility on the ground that no prior administrative complaint was submitted by the applicant must be rejected. | T-411/06
Sogelma | 73-81 | ECT-230 | 73 First, it should be noted that the decision to cancel the tender procedure is not a decision which had to be formally notified to the applicant in accordance with Article 254(3) EC. The applicant is not an addressee of the decision to cancel the tender procedure (see, to that effect, order of 14 May 2008 in Case T-383/06 Icuna.Com v Parliament [2008] ECR II-0000, paragraph 43). The decision to cancel related to the entire tender procedure, and the fact that it was subsequently communicated to the applicant does not mean that it was addressed to the applicant.
74 The period for instituting proceedings laid down in the fifth paragraph of Article 230 EC therefore started to run from the time when the applicant had knowledge of the decision.
75 According to the Court’s case-law, if the date of notification of a decision cannot be established with certainty, the applicant is accorded the benefit of the doubt which results and his application is regarded as having been lodged within the prescribed period if, in the light of the facts, it does not appear absolutely impossible that the letter notifying the decision arrived so late that the time-limit was complied with (Joined Cases 32/58 and 33/58 SNUPAT. v High Authority [1959] ECR, p. 127, at p. 136).
76 Similarly, the applicant is accorded the benefit of the doubt if it is not a matter of determining the date of notification, but the date on which the applicant became aware of the act. It is for the party pleading that the action is out of time to provide evidence of the date on which the event causing time to begin to run occurred (see Case T-347/03 Branco v Commission [2005] ECR II-2555, paragraph 54, and case-law cited).
77 It is clear that sending an e-mail does not guarantee that it is actually received by the person to whom it is addressed. An e-mail may not reach him for technical reasons. Even if, in the present case, the EAR did not receive a ‘not received’ message, that does not necessarily mean that the email did actually reach the person to whom it was addressed. Furthermore, even where an e-mail actually reaches the person to whom it is addressed, it may not be received on the day on which it was sent.
78 In that context, it must be observed that the EAR could have chosen a means of communication which enabled it to establish accurately the date on which the letter reached the tenderer. It is true that the EAR asked the applicant, in its e-mail of 9 October 2006, to confirm by e-mail receipt of the message. However, it did not receive such confirmation. It is clear that, if the sender of an e-mail who does not receive any confirmation of receipt takes no further action, he is normally not able to prove that that e-mail was received and, when necessary, on which date.
79 As regards the EAR’s argument, put forward in the rejoinder, that the letter in question was not sent to the applicant by e-mail and by post, but solely by e-mail, contrary to what was stated in the statement in defence, the EAR offers no evidence in that connection. The ‘fiche détail’ [record sheet] produced as an annex to the rejoinder which refers to the sending of the letter in question on 9 October 2006 certainly cannot exclude the possibility that the letter was also sent by post. It should be noted that the EAR conceded, moreover, at the hearing, that that document did not demonstrate that the communication was not sent by post.
80 The EAR has therefore not demonstrated that the applicant had knowledge of the decision to cancel the tender procedure before 12 October 2006, the date on which the applicant acknowledges having received the letter of 9 October 2006. The period of two months laid down in the fifth paragraph of Article 230 EC, extended, under Article 102(2) of the Court’s Rules of Procedure, by a period of 10 days on account of distance, therefore expired on 22 December 2006, the date on which the application was lodged at the Registry of the Court of First Instance.
81 It follows from the foregoing that the present action cannot be regarded as out of time in so far as it relates to annulment of the decision to cancel the tender procedure. | T-411/06
Sogelma | 85-90 | ECT-230 | 85 The Court has consistently held that only a measure whose legal effects are binding on the applicant and are capable of affecting his interests by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 230 EC (see order in Case C-164/02 Netherlands v Commission [2004] ECR I-1177, paragraph 18, and case-law cited).
86 As a general rule, a decision to organise a tender procedure has no adverse effects, since it does no more than give to interested parties the possibility of taking part in the procedure and submitting a tender. The applicant has not put forward any arguments capable of showing that, in the present case, the decision to organise a new invitation to tender could none the less be regarded as adversely affecting it.
87 Accordingly, the applicant’s argument that, should its action be upheld, that would reopen the first procedure and render the second devoid of purpose, is not capable of establishing that the decision to organise a new tender procedure adversely affects it. Equally, its argument that, were the decision to cancel the first tender procedure to be held unlawful, the subsequent decision to organise a new tender procedure would be the direct consequence of the EAR’s unlawful conduct, is not capable of demonstrating that the latter decision adversely affects it. The mere fact that there is a link between one decision which adversely affects the applicant, namely the cancellation of the first tender procedure, and a second decision, namely the decision to organise a new tender procedure, does not mean that the second decision also adversely affects it.
88 Furthermore, it is clear that the decision to organise a new tender procedure for the same work as that covered by a procurement procedure which has been previously cancelled does not in itself mean that, if the Court annuls the decision to cancel the first procurement procedure, the contracting authority is no longer in a position to continue the first procedure. The decision to organise a new tender procedure does not necessarily involve the award of a contract covering the same work to another tenderer.
89 In light of the foregoing, it must be held that the applicant has not brought forward evidence to establish that the decision to organise a new tender procedure has legal effects which are binding on it and are capable of affecting its interests by bringing about a distinct change in its legal position.
90 It follows that the action must be dismissed as inadmissible in so far as the applicant seeks annulment of the decision to organise a new tender procedure, and it is unnecessary to examine whether the application meets the requirements of Article 44(1)(c) of the Rules of Procedure. | T-411/06
Sogelma | 95-102 | ECT-230
CFIR-64 | 95 It is, first of all, clear that Sogelma is the only applicant in the present case. In particular, neither DOK ING nor the consortium formed by the applicant and DOK ING are parties to these proceedings. Moreover, it must be noted that the applicant does not claim that DOK ING has assigned its rights to the applicant.
96 It is necessary therefore to examine whether the three documents which the applicant has produced, at the request of the Court, enable it to assert the rights of DOK ING in the context of the present proceedings.
97 As regards the document titled ‘Joint Venture Agreement’, dated 27 September 2005, Article 4 thereof provides that the applicant, as Group Leader, has authority in particular to assume obligations on behalf of DOK ING and that it may sign, on behalf of the joint venture, all documentation required for the performance of works covered by the contract. It must be pointed out that this agreement makes no reference to the possibility of the applicant bringing legal proceedings to assert the rights of DOK ING.
98 As regards the document titled ‘Power of attorney’, signed on 6 December 2005 by a representative of DOK ING, it must be observed that this also makes no reference to the possibility of the applicant bringing legal proceedings to assert the rights of DOK ING.
99 Only the third document submitted by the applicant, a letter from DOK ING dated 1 December 2006 and addressed to the applicant, relates to legal proceedings. That letter reads as follows: ‘With reference to the above tender and the subsequent cancellation by the Contracting Authority, we her[e]by authorize you as the Joint Venture Leader, to instruct your lawyer to take legal action against the [EAR], for damages caused by the tender cancellation, also on our behalf.’
100 Accordingly, that document serves only to authorise the applicant to instruct its lawyer to take legal proceedings on behalf of DOK ING also. The document does not however deal with the form and content of the legal proceedings referred to and, consequently, provides no detail of those matters. In particular it does not provide that the applicant is entitled to bring legal proceedings in its name alone and to thereby assert the rights of DOK ING. It is clear that the fact that a company instructs a lawyer for the purpose of bringing legal proceedings also on behalf of a second company normally means that the lawyer will bring the action in the name of two applicants, or by means of two separate actions.
101 It is not acceptable for a company to assert in legal proceedings the rights of another company if it has not been unequivocally instructed to do so. There is an interest in having the status of applicant in order to be able to determine the scope of the case and, if necessary, to bring an appeal against the judgment to which an action gives rise. Moreover, a company which wishes to obtain payment of a certain sum as compensation for alleged damage normally wants the court to order the defendant to pay that sum to it and not to another company.
102 It follows from the foregoing that the documents provided by the applicant are not such as to establish that it was instructed by DOK ING to assert, as the sole applicant, the rights of the DOK ING before the Community judicature. 103 It follows that the action is inadmissible to the extent that the applicant asserts the rights of DOK ING. | T-411/06
Sogelma | 122-126 | ECT-230
Q4-101 | 125 As regards the applicant’s argument that cancellation of the procedure is the result of an ill-considered judgment, made without a thorough assessment of the public interest to be protected, it is clear that this does not in fact relate to an infringement of essential procedural requirements, but concerns the substance, since it amounts to an allegation of an error of assessment on the part of the EAR.
126 In any event, the facts put forward by the applicant are not such as to establish that the EAR committed a manifest error of assessment. True, there was a public interest in ensuring that unexploded ordnance in the inland waterway transport system of Serbia and Montenegro was removed as soon as possible in order to permit the re-opening of those waters to navigation. None the less, the mere fact that there is a public interest in a contract being awarded quickly does not allow the contracting authority to dispense with the obligatory technical requirements set out in the call for tenders. Under Article 100(1) of the Financial Regulation, the selection of the tenderer to whom the contract is to be awarded must be made in compliance with the selection and award criteria laid down in advance in the documents relating to the call for tenders. As is stated by the Commission, if a contracting authority could set aside the conditions of the contract, as originally prescribed, that would give an advantage to those who submitted tenders over those undertakings which had decided not to take part in the tender procedure owing to the fact that they – just like the tenderers – could not satisfy the requirements laid down in advance. | T-406/06
Evropaïki Dinamiki | 64-79 | ECT-230-impl | 64 As a preliminary point, it must be noted that it is settled case-law that the Commission has broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; see Evropïki Dynamiki v Commission, cited in paragraph 49 above, paragraph 89 and the case-law cited).
65 In the present case, the applicant claims the Commission committed several manifest errors of assessment in the evaluation of its offer.
66 As regards the ‘Project management and availability’ criterion, the applicant disputes the evaluation committee’s finding that its offer lacked balance and gave undue weight to the technical part of the contract. It submits that the evaluation committee was wrong to consider that the applicant was offering only 30 man-days for the support services and that it had, in doing so, underestimated the number of days and resources necessary for user support.
67 The Court notes in this connection that the invitation to tender, in the description of the tasks, specified, as regards the technical profile: ‘The system will not need major improvements. We only anticipate that it will need minor updates and enhancements to follow the developments of the market.’
68 Consequently, the wording of the invitation to tender indicates that the technical part was ancillary and the part dealing with user support therefore indeed seems to be the more important.
69 It must be stated that, as regards the evaluation of the number of man-days, the table in the financial proposal in the applicant’s tender provides for four posts, each of which is assessed in man-days and the total of which amounts to 410 man-days. Thus, 30 man-days are allocated to the post of contract/quality manager, 80 man-days are allocated to the post of senior analyst, 80 mandays are allocated to the post of software and database architect and 220 days are allocated to the post of senior software engineer.
70 It is apparent from the description of those four posts by the applicant in its tender that the contract/quality Manager is described as being responsible for the coordination and planning of the activities linked to the project and responsible ‘for the overall contract implementation management, quality assurance, European Commission Security Convention terms follow up and interfacing with the Commission’. His duties can therefore be regarded as covering, at least in part, user support services.
71 By contrast, the duties of the senior analyst, the software and database architect and the senior software engineer are all described as relating to the technical support services of the CITL. They must thus be regarded as meeting the requirements of the technical profile in the invitation to tender.
72 Therefore, it must be stated that the applicant’s tender could be interpreted as meaning that only the post of contract/quality manager clearly fell within the ‘user support’ part. Furthermore, it might also be regarded as only partially falling within that part, since that post was allocated other duties.
73 In addition, the figure of 190 man-days put forward by the applicant is not, in its tender, specifically allocated to the user support service. The evaluation committee is not required to take into account evidence and information not communicated with the tender submitted. Moreover, in contrast to what the applicant asserts, the template adopted in its financial proposal was not obligatory, since the invitation to tender specified that the financial tender template was provided only for purposes of information. The presentation of the applicant’s tender could therefore have been adapted so as to show clearly the figure of 190 man-days, allegedly allocated to the user support service but which does not appear as such in its offer.
74 Therefore the evaluation committee was entitled, without committing any manifest error of assessment, to consider that only 30 man-days, corresponding to the post of contract/quality manager, were allocated to user support and that, as a result, the tender lacked balance having regard to the importance of that task in the invitation to tender.
75 Furthermore, in the light of the division of the posts and methodology proposed by the applicant on the one hand and, on the other, the number of pages devoted to the user support services (three pages) in comparison to the number of pages devoted to the technical services (seven pages), the applicant’s offer could, without a manifest error of assessment, be regarded as weighted towards the technical profile and not towards user support.
76 Lastly, nothing turns on the fact that the Commission had found the rate of the proposed experts’ pay satisfactory in other contracts, since the assessment here concerns only the presentation of the applicant’s team in the contract at issue.
77 In conclusion, the Commission did not commit any manifest error of assessment as regards the ‘Project management and availability’ award criterion.
78 Otherwise, as regards the applicant’s arguments seeking to dispute the evaluation committee’s assessment in respect of the ‘Understanding’ and ‘Methodolody’ criteria, the committee’s assessment on those criteria is not the reason for the Commission’s rejection of the applicant’s tender. Those arguments are therefore irrelevant.
79 It follows from all of the foregoing that the applicant has not proved any manifest error of assessment by the Commission in the present case. | T-264/06
DC-Hadler Networks | 16-21 | ECT-230-impl | 16 La Commission allègue que le recours est sans objet, dans la mesure où l’exécution des lots faisant l’objet de l’appel d’offres a déjà été confiée à une organisation internationale.
17 La requérante répond que, à défaut de lui donner la possibilité de soumissionner une nouvelle fois pour le marché en question, l’annulation de la décision attaquée lui permettrait de réclamer la réparation du préjudice subi en se fondant sur la responsabilité extracontractuelle de la Commission.
18 Aux termes d’une jurisprudence constante, un recours en annulation contre un acte devenu sans objet est recevable s’il permet de redresser les éventuelles conséquences préjudiciables résultant de cet acte ou d’éviter que l’illégalité alléguée ne se reproduise à l’avenir (arrêt de la Cour du 26 avril 1988, Apesco/Commission, 207/86, Rec. p. 2151, point 16 ; arrêt du Tribunal du 25 mars 1999, Gencor/Commission, T-102/96, Rec. p. II-753, point 41 ; ordonnance du Tribunal du 5 décembre 2007, Schering-Plough/Commission et EMEA, T-133/03, non publiée au Recueil, point 31).
19 Il résulte également de la jurisprudence que, même dans une situation où la décision attaquée a déjà été pleinement exécutée en faveur d’autres concurrents dans le cadre d’une même adjudication, le requérant conserve un intérêt à voir annuler cette décision soit pour obtenir, de la part de la Commission, une remise en état adéquate de sa situation, soit pour amener la Commission à apporter, à l’avenir, les modifications appropriées au régime des adjudications, au cas où celui-ci serait reconnu contraire à certaines exigences juridiques (arrêt de la Cour du 6 mars 1979, Simmenthal/Commission, 92/78, Rec. p. 777, point 32).
20 La requérante conserve par conséquent un intérêt à agir même si l’achat et la livraison des fournitures visées dans l’appel d’offres EuropeAid/122742/C/SUP/RU, qui fait l’objet de la décision attaquée, ont été confiés à un tiers.
21 Dès lors, l’objection de la Commission relative à la disparition de l’objet du litige doit être écartée. | T-129/06-A
Diy-Mar Insaat Sanayi | 34-45 | ECT-230 | 34 Nach Art. 230 Abs. 5 EG war die vorliegende Klage binnen zwei Monaten ab Bekanntgabe der Entscheidung an die Kläger zu erheben.
35 Anlage 5 der Klageschrift ist zu entnehmen, wie im Übrigen auch nicht bestritten wird, dass das Formerfordernis der Bekanntgabe mit der Übersendung der Entscheidung an die Kläger per Telefax vom 23. Dezember 2005 erfiillt wurde.
36 Bei einer Maßnahme, die auf diese Art und Weise bekannt zu geben ist, endet die Klagefrist, wenn sie in Kalendermonaten ausgedrückt ist, mit Ablauf des Tages, der in dem durch die Frist bezeichneten Monat dieselbe Zahl trägt wie der Tag, an dem die Frist in Lauf gesetzt worden ist, also der Tag der Bekanntgabe (Beschluss des Gerichtshofs vom 17. Mai 2002, Deutschland/Parlament und Rat, C-406/01, Slg. 2002, 1-4561, Randnr. 14).
37 Gerechnet ab Bekanntgabe der Entscheidung am 23. Dezember 2005, ist die in Anwendung von Art. 102 ~ 2 der Verfahrensordnung um die pauschale Frist von zehn Tagen verlängerte Klagefrist von zwei Monaten, über die die Kläger nach Art. 230 Abs. 5 EG verfügten, am Montag, den 6. März 2006, abgelaufen.
38 Da die Klageschrift erst am 24. April 2006 rechtswirksam eingereicht worden ist, ist die vorliegende Klage als verspätet anzusehen.
39 Soweit die Kläger geltend machen, die ordnungsgemäße Erhebung ihrer Klage habe sich nur deswegen verzögert, weil die Kommission in der der Entscheidung beigefiigten Rechtbehelfsbelehrung nicht erwähnt habe, dass eine Klage weder von den Betroffenen selbst noch durch Anwälte erhoben werden könne, die nur vor türkischen Gerichten auftreten dürften, und wegen dieses Versäumnisses, durch das sie irregefiihrt worden seien, könne ihnen die Klagefrist nicht entgegengehalten werden, bleibt ihrem Vorbringen der Erfolg versagt.
40 Der entschuldbare Irrtum, auf den sich die Kläger berufen und der es erlauben würde, aus Gründen der Rechtssicherheit und des Vertrauensschutzes zu ihren Gunsten von den Gemeinschaftsbestimmungen über die Klagefristen, bei denen es sich um zwingendes Recht handelt, abzuweichen, ist ein eng auszulegender Begriff.
41 Die Vorschriften über die Verfahrensfristen unterliegen einer restriktiven Anwendung, die dem Erfordernis der Rechtssicherheit und der Notwendigkeit entspricht, jede Diskriminierung oder willkürliche Behandlung bei der Rechtspflege zu vermeiden (Urteil des Gerichtshofs vom 12. Juli 1984, Ferriera ValsabbialKommission, 209/83, Slg. 1984, 3089, Randnr. 14, und Beschluss des Gerichtshofs vom 18. Januar 2005, Zuazaga Meabe/HABM, C-325/03 P, Slg. 2005,1-403, Randnr. 16; Beschluss des Präsidenten des Gerichts vom 28. April 2005, Microsoft/Kommission, T-20l/04, Slg. 2005, 11-1491,Randnr. 47).
42 Der entschuldbare Irrtum kann sich daher nur auf Ausnahmefälle beziehen, insbesondere auf solche, in denen das betroffene Organ den Irrtum durch ein Verhalten verursacht hat, das für sich genommen oder aber in ausschlaggependem Maß geeignet war, bei einem gutgläubigen Rechtsbürger, der alle Sorgfalt aufwendet, die von einem Einzelnen mit normalem Kenntnisstand zu verlangen ist, eine verständliche Verwirrung hervorzurufen (Urteil des Gerichts vom 29. Mai 1991, Bayer/Kommission, T-12/90, Slg. 1991,11-219, Randnr. 29, bestätigt im Rechtsmittelverfahren durch Urteil des Gerichtshofs vom 15. Dezember 1994, Bayer/Kommission, C-195/91 P, Slg. 1994,1-5619, Randnm. 26 bis 28).
43 Das wesentliche Formerfordernis, dass die Klageschrift von einem Anwalt unterschrieben ist, der berechtigt ist, vor einem Gericht eines Mitgliedstaats aufzutreten, ist im Protokoll über die Satzung des Gerichtshofs vorgesehen, das u. a. in der Sammlung der Verträge über die Europäische Union sowie im Amtsblatt der Europäischen Union veröffentlicht ist. Die Kläger und ihre türkischen Anwälte waren aufgrund dieser Veröffentlichung in der Lage, die Erfordernisse in Bezug auf die Vertretung der juristischen und natürlichen Personen vor dem Gemeinschaftsgericht zu kennen.
44 Da ihnen diese Erfordernisse somit entgegengehalten werden können, ohne dass es dazu eines Hinweises in der Entscheidung bedurft hätte, haben weder die Kläger noch ihre türkischen Anwälte alle Sorgfalt aufgewandt, die von einem verständigen Kläger zu verlangen ist; daher können sie nicht mit Erfolg geltend machen, dass die Kommission, indem sie nur die Klagefrist genannt habe, ihnen gegenüber ein Verhalten an den Tag gelegt habe, das für sich genommen oder aber in ausschlaggebendem Maß geeignet gewesen wäre, bei ihnen eine verständliche Verwirrung im Hinblick auf die Modalitäten ihrer gerichtlichen Vertretung vor dem Gemeinschaftsgericht hervorzurufen.
45 Infolgedessen ist die Klage wegen Verspätung als unzulässig abzuweisen, ohne dass über die Anträge zu entscheiden ist, die die Kläger neben dem Antrag auf Nichtigerklärung der Entscheidung gestellt haben. | T-125/06
Centro Studi Antonio Manieri | 22-30 | ECT-230
ECS-45 | 22 The fifth paragraph of Article 230 EC provides that proceedings for annulment must be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. In accordance with Article 102(2) of the Rules of Procedure of the Court of First Instance, that period must also be extended by 10 days on account of distance.
23 In the present case, the decision of the Council was sent by letter of its General Secretariat dated 16 January 2006, and addressed to the applicant by fax the following day. At the hearing, the applicant expressly acknowledged that it received that letter on 17 January 2006.
24 Since the letter was received by the applicant on 17 January 2006, the time-limit for instituting proceedings for the annulment of the decision in question, extended by 10 days on account of distance, expired at midnight on 27 March 2006 (dies ad quem).
25 It is clear that a copy of the application was received at the Registry by fax on 20 March 2006 and the original application was subsequently lodged on 3 May 2006.
26 Under Article 43(6) of the Rules of Procedure, 20 March 2006 is deemed to be the date of lodgment for the purpose of compliance with the time-limits for taking steps in proceedings, provided that the signed original of the pleading was lodged at the Registry no later than 10 days thereafter, that is, no later than midnight on 30 March 2006. Given that, in the present case, the signed original application was lodged only on 3 May 2006, 20 March 2006 cannot be deemed to be the date of lodgment for the purposes of compliance with the time-limits for taking steps in proceedings. The only date that can be taken into account for the purpose of determining whether the application was lodged out of time is therefore 3 May 2006. Since that date is after the dies ad quem, the action is out of time and must, in principle, be declared inadmissible.
27 However, it is necessary to examine whether, in the present case, there exist unforeseeable circumstances or force majeure which would permit the Court to derogate from the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, applicable to proceedings before the Court of First Instance pursuant to Article 53 of that statute.
28 The concepts of ‘force majeure’ and ‘unforeseeable circumstances’ within the meaning of Article 45 of the Statute of the Court of Justice contain both an objective element relating to abnormal circumstances unconnected with the person in question and a subjective element involving the obligation, on that person’s part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the person concerned must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time-limits (Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraph 32). Thus, the concept of force majeure does not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings (Case 209/83 Ferriera Valsabbia v Commission [1984] ECR 3089, paragraph 22, and order of the Court of Justice in Case C-325/03 P Zuazaga Meabe v OHIM [2005] ECR I-403, paragraph 25). It is therefore necessary to examine whether the circumstances relied on by the applicant may be regarded as exceptional circumstances which constitute a case of force majeure.
29 In the present case, the package containing the original signed application was sent by the applicant on 17 March 2006. By sending the original document on that date, the applicant could reasonably expect it to arrive at the Court before the expiry of the limitation period, especially since, in view of the fact that a copy of that document had been sent by fax, that period had been extended to 30 March 2006. The package in question had already reached the offices of the Luxembourg postal service on 21 March 2006, as demonstrated by the postmark on the package. The fact that the postal service kept the package for a period of 42 days (from 21 March to 3 May 2006) clearly constitutes abnormal circumstances unconnected with the applicant, which, for its part, demonstrated diligence in order to comply with the prescribed time-limits by sending the original application well before the expiry of the limitation period and by taking the steps necessary to extend that period in accordance with Article 43(6) of the Rules of Procedure by sending a copy of the application to the Court Registry by fax. Consequently, the fact that the original application was lodged out of time is attributable to a case of force majeure (see, to that effect, Joined Cases 25/65 and 26/65 Simet and Feram v High Authority [1967] ECR 33, p. 43).
30 It follows that, as the expiry of the time-limit is not enforceable against the applicant, pursuant to the second paragraph of Article 45 of the Statute of the Court of Justice, the Council’s plea alleging inadmissibility must be rejected. | T-125/06
Centro Studi Antonio Manieri | 92-94 | ECT-230
M4A1-116.7 | 92 The application for annulment of the Council’s favourable evaluation of the OIB’s proposal cannot be declared admissible.
93 The favourable evaluation of the OIB’s proposal which preceded the decision to entrust the services in question to that office is an internal act that is unconnected with the tendering procedure, given that, as was established at paragraphs 44 to 48 above, the Council is not required to comply with the rules governing public procurement when it decides to use the services of the OIB.
94 As an internal act that is unconnected with the tendering procedure, the favourable evaluation of the OIB’s proposal cannot produce binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in its legal position. It cannot therefore constitute an act against which an action for annulment can be brought under Article 230 EC (see Joined Cases T-10/92 to T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] ECR II-2667, paragraph 28 and the case-law cited) and this application for annulment must therefore be declared inadmissible. | T-114/06-R
Globe SA | 29-34 | ECT-230-impl
ECT-243-impl | 29. Before ruling on the application for interim measures, the subject matter of the application should be made clear. The applicant, in its application, is seeking suspension of the operation of the contested decision.
30. It should be pointed out that a decision relating to the award of a contract to a single tenderer inevitably and inseparably entails a corresponding decision not to award the contract to the other tenderers. It must therefore be held that the formal communication of the result of the tendering procedure to the rejected tenderers does not mean that a decision other than the decision awarding the contract will be adopted for the express purpose of stating a rejection (judgment of the Court of First Instance in Case T183/00 Strabag Benelux v Council [2003] ECR II135, paragraph 28).
31. It must therefore be considered that the applicant is seeking suspension of the operation both of the decision not to award it the contract and of the decision to award the contract to IGN.
32. Moreover, it was confirmed at the hearing that the contract was concluded by the Commission on 19 December and by IGN on 30 December, that performance has begun but is not yet completed. The contract is thus the immediate extension of the Commission's decision to award the contract to IGN.
33. However, as was made clear at the hearing, the applicant puts forward claims for damages arising from performance of the contract and is therefore seeking to prevent serious and irreparable damage which would result, in its view, from such performance.
34. It must be considered therefore that the applicant is also seeking suspension of performance of the contract. | T-114/06-R
Globe SA | 58 | ECT-230-impl | 58. It should further be observed, also as a preliminary matter, that, in accordance with settled case-law, the Commission has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court's review should be limited to checking that there has been no serious and manifest error (judgment of the Court in Case 56/77 Agence Européenne d'Interims v Commission [1978] ECR 2215, paragraph 20, and judgment of the Court of First Instance in Case T19/95 Adia Interim v Commission [1996] ECR II321, paragraph 49). | T-376/05
TEA-CEGOS | 50 | ECT-230-impl | 50. Second, as regards the complaint alleging the manifest error of assessment affecting the contested decisions, it should be noted that the Commission has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (Case T145/98 ADT Projekt v Commission [2000] ECR II387, paragraph 147, and Case T169 Esedra v Commission [2002] ECR II609, paragraph 95). | T-195/05
Deloitte | 113-114 | ECT-230-impl | 113. The application for annulment of the decision awarding the contract to a third party must be dismissed as a consequence of the dismissal of the application for annulment of the preceding decision with which it is closely connected.
114. It follows that the action must be dismissed in its entirety. | T-106/05-A
Evropaiki Dinamiki | 36-37 | ECT-230 | 36 The plea alleging an absolute bar to proceeding raised by the Commission is divided into two parts, alleging, first, that the action is out of time as regards the first decision challenged, namely the letter of 2 December 2004, and, second, that the decision allegedly contained in the letter of 13 December 2004 does not constitute a challengeable act because it does not produce legal effects capable of affecting the applicant’s interests by bringing about a distinct change in its position. In any event, that letter should be regarded as being merely a confirmation of the decision contained in the letter of 2 December 2004 to reject the applicant’s application. However, the defendant does not explicitly define its position with respect to the letter sent by the Head of the Delegation on 24 January 2005.
37 Therefore, it is appropriate to determine whether, as the defendant claims, the letter of 2 December 2004 must be regarded as a ‘notification within the meaning of Article 230 EC’. | T-106/05-A
Evropaiki Dinamiki | 38-41 | Q4-100.2
M4-149
ECT-230 | 38 In that regard, it must be recalled, first of all, that, according to Article 100(2) of the Financial Regulation, the contracting authority is to notify all candidates whose applications are rejected of the grounds on which the decision was taken, and, under Article 149 of the implementing rules, it must as soon as possible inform candidates of decisions reached concerning the award of the contract.
39 In this case, it must be observed that the Delegation informed the applicant that its application had been rejected by a standard letter, the model for which is in Annex B8 of the Finance Guide for the external actions financed from the General Budget of the EC, sent by fax on 2 December 2004. The Delegation had ticked the box indicating that the application did not satisfy the criterion of technical capacity and that it was inferior to that of the applications which were accepted and stated, furthermore, that, out of 19 applications received following the publication of the contract notice, it had short-listed eight of them. As was stated in Article 21(3) of the contract notice, concerning the candidate’s technical capacity, the latter had to demonstrate ‘at least one project/reference of the execution of 6 of the 10 assignments listed under point 7 [of the contract notice] within the last three years’, relating to the description of the contract.
40 By that letter, the Commission did, therefore, notify the applicant in a sufficiently precise and unequivocal manner of its definitive decision to reject the application at issue and stated the reasons for that, in accordance with the provisions of the Financial Regulation and the implementing rules mentioned above. Furthermore, it is clear from the words used by the applicant in its letter of 8 December 2004, and the correspondence subsequently exchanged between it and the Delegation, that it had indeed identified the reasons for the decision to reject its application. There is no other possible explanation for the arguments set out in that letter as regards the fact that the decision to reject the application did not take account of all the projects and references set out in sections 5 and 6 of the application form with reference to the list of areas of technical assistance set out in point 7 of the contract notice.
41 Contrary to the applicant’s submissions, there is no doubt, therefore, that the letter at issue constitutes an act which brought about a distinct and immediate change in its legal position and which should, if necessary, have been challenged within the period provided for that purpose. Under the fifth paragraph of Article 230 EC, the period within which to institute an action for annulment is two months from the notification of the decision to the applicant, which in this case was 2 December 2004, and an additional 10 days on account of distance as provided for in Article 102(2) of the Rules of Procedure. The period for instituting an action for annulment against that decision therefore expired on 14 February 2005. Since the application was lodged on 22 February 2005, the action was brought out of time. | T-106/05-A
Evropaiki Dinamiki | 42-44 | ECT-230 | 42 The applicant’s argument that that letter did not contain a definitive decision, as evidenced, it argues, by the fact that after it was sent discussions with the Delegation continued and the latter sent the applicant a further three letters, does not alter that assessment. The fact that the applicant and the Delegation were in contact after the letter of 2 December 2004 was sent and that the Delegation sent other letters in response to issues raised by the applicant does nothing to alter the manifestly binding and definitive nature of that letter.
43 Furthermore, the applicant’s reasoning is contradicted by its letter of 23 December 2004, in which it explicitly requested the Delegation to provide it with assurances as regards its right of appeal, which shows that it was perfectly aware of the fact that the decision of 2 December 2004 was an act adversely affecting it. The only uncertainty on the part of the applicant related to remedies, as is clear from the passage in the letter where it states the following: ‘In case our legitimate appeal is rejected we do not feel that we will enjoy sufficient protection if we bring this issue before the Turkish courts. As an EU taxpayer we respectfully ask the European Commission to protect our rights arising from the EU public procurement legislation. In particular, we would like to ask that in case we are not immediately included in the short list, we have the appeal rights as specified by the EU public procurement legislation and the Financial Regulation.’
44 Furthermore, it must be held, in that regard, that it was for the applicant alone to decide whether to bring an action for annulment and not to allow the mandatory time-limit of two months provided for for that purpose to expire. Therefore, no importance can be attached to the correspondence exchanged between the applicant and the Delegation after the decision to reject its application. | T-106/05-A
Evropaiki Dinamiki | 45-46 | ECT-230 | 45 As regards the decisions supposedly contained in the letters from the Delegation of 13 December 2004 and 24 January 2005, it is appropriate to determine whether the latter merely confirmed therein the decision to reject the applicant’s application without taking into consideration any new factor capable of producing binding legal effects capable of affecting the applicant’s interests.
46 It should be remembered, in that regard, that according to settled case-law, actions for annulment brought against decisions which merely confirm earlier decisions which have not been contested within the time-limits are inadmissible (see, to that effect, the order of 7 December 2004 in Case C- 521/03 P Internationaler Hilfsfonds v Commission, not published in the ECR, paragraph 41; Case T- 275/94 CB v Commission [1995] ECR II-2169, paragraph 27; order in Case T-235/95 Goldstein v Commission [1998] ECR II-523, paragraph 41; order in Case T-84/97 BEUC v Commission [1998] ECR II-795, paragraph 52; and order in Case T-127/01 Ripa di Meana v Parliament [2002] ECR II- 3005, paragraph 25). A decision is regarded as merely confirmatory of a previous decision if it contains no new factor as compared with a previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed (Case 54/77 Herpels v Commission [1978] ECR 585, paragraph 14; order in BEUC v Commission, paragraph 52; Case T-186/98 Inpesca v Commission [2001] ECR II-557, paragraph 44; and order in Internationaler Hilfsfonds v Commission, paragraph 47). | T-106/05-A
Evropaiki Dinamiki | 47-54 | ECT-230 | 47 The applicant submits in its observations on the plea of inadmissibility that the third decision contested, that is, the decision supposedly contained in the letter of 24 January 2005, constitutes the response of the Delegation to its letter of 23 December 2004, in which it had challenged the Evaluation Committee’s decision not to include the applicant in the short-list and requested a reexamination of its application. That decision was adopted after a re-examination of the file and should therefore be regarded as a new decision producing legal effects and thus capable of being challenged, in accordance with Article 230 EC. The applicant argues essentially that the letter at issue must be regarded as the act by which the Commission notified its definitive decision, and not as the confirmation of a previous act.
48 In that regard, it is clear, as the case-law indicates, that whether a measure is confirmatory cannot be determined solely with reference to its content as compared with that of the previous decision which it confirms, but must also be appraised in the light of the nature of the request to which it constitutes a reply (see, to that effect, Inpesca v Commission, paragraph 45 and the case-law cited, and the order in Case T-308/02 SGL Carbon v Commission [2004] ECR II-1363, paragraph 52).
49 In particular, it is clear from that case-law that, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is asked to reconsider its previous decision, that measure cannot be regarded as merely confirmatory, since it constitutes a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision. The existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive. Conversely, if the request for reconsideration is not based on substantial new facts, an action against the decision refusing to reconsider it must be declared inadmissible (see, to that effect, Inpesca v Commission, paragraph 49, and the order in SGL Carbon v Commission, paragraph 54).
50 It must be observed that, in this case, the evidence relied on by the applicant in support of its request for re-examination of the decision to reject its application in no way constitutes substantial new facts. In the letter of 23 December 2004, the applicant merely challenges the letter of 13 December 2004 which it had just received in which the Delegation repeated the grounds which were the basis of the decision to reject its application. It simply inserted a table in which it matched the areas of technical assistance set out in point 7 of the contract notice with the references mentioned in its application form, numbered in the same way as the latter.
51 Likewise, it cannot be held that the letter of 13 December 2004, sent by the Delegation in response to the applicant’s letter of 8 December 2004, in which the applicant had already set out its objections as to the reasons which were the basis of the rejection of its application, is based on new factors and was preceded by a re-examination of the applicant’s situation.
52 In that letter, the Delegation essentially merely restated its position, as already set out in its decision of 2 December 2004. It states, in particular, that the selection was made solely on the basis of the criteria mentioned in point 7 of the contract notice and that all the applications received were then compared in order to determine the eight applicants to be short-listed. In the final paragraph, the Delegation states, finally, that the applicant’s application did not satisfy the criterion relating to the minimum number of references (six out of the ten listed) to projects in the contract notice, whereas that criterion was fulfilled by the candidates selected.
53 The same is true as regards the note of 24 January 2005, in which the Head of Delegation merely repeated what the Head of Section, Financial Management and Procurement had stated in the letter of 13 December 2004.
54 It must be held, therefore, that none of the information contained in those two letters constitutes a new factor of such a kind as to confer on them the character of new decisions adversely affecting the applicant. Furthermore, there is nothing either in the file submitted to the Court of First Instance or in the final contested letter to indicate that the sending of that letter was preceded by a reexamination of the applicant’s application (see, to that effect, the order in Case T-372/02 Internationaler Hilfsfonds v Commission [2003] ECR II-4389, paragraph 44). Moreover, the statement of reasons contained in those two letters is substantially the same as that contained in the first contested letter. | T-106/05-A
Evropaiki Dinamiki | 55-60 | ECT-230 | 55 It must also be observed that according to settled case-law, where an applicant allows the timelimit for bringing an action against a decision unequivocally laying down a measure with legal effects affecting his interests and binding on him to expire, he cannot start time running again by asking the institution to reconsider its decision and by bringing an action against the refusal confirming the decision previously taken (Cobrecaf and Others v Commission, paragraph 44; see also, to that effect, the order in Case C-250/90 Control Union v Commission [1991] ECR I-3585, paragraph 14).
56 Finally, as regards the applicant’s claim that it is clear from the letter sent to it by the Delegation that the latter had assured the applicant that its application would be re-examined and that it would reply within three weeks to the applicant’s request for re-examination, the applicant’s allegation that the conduct of the Commission was such as to give rise to pardonable confusion on its part as to the definitive nature of the letter of 2 December 2004 is unfounded, since the terms of that letter clearly disclose both the Delegation’s decision to reject its application and the reasons for the decision.
57 In any event, even if the conduct of the Commission, assuming it were established, caused the application to be lodged out of time that would not have made the action admissible by derogation from the rules governing the time-limits for initiating proceedings. Such conduct could not have led the applicant to make an excusable error, that is to say, one which the Community judicature accepts as permitting a derogation from the rules governing time-limits for initiating proceedings. The concept of excusable error, the direct source of which is a concern for observance of the principles of legal certainty and the protection of legitimate expectations, can, according to settled case-law, concern only exceptional circumstances in which, in particular, the conduct of the institution concerned was, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally prudent person (Case T-12/90 Bayer v Commission [1991] ECR II-219, paragraphs 28 and 29, confirmed on appeal in Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraph 26).
58 Although such may be the case where the commencement of an action out of time is caused by the provision, by the institution concerned, of wrong information creating pardonable confusion in the mind of a party acting in the manner mentioned above, it cannot be the case where, as here, the party cannot harbour any doubt that the measure notified to it is in the nature of a decision (see, to that effect, the order in Case T-218/01 Laboratoire Monique Rémy v Commission [2002] ECR II-2139, paragraph 30, and the Opinion of Advocate General Tizzano in Case C-193/01 P Pitsiorlas v Counciland ECB [2003] ECR I-4837, I-4839, paragraph 20).
59 In any event, it must be observed that, in this case, the applicant has not established or even alleged the existence of excusable error.
60 In the light of all of the foregoing considerations, it must be held that, as the letters of 13 December 2004 and 24 January 2005 do not contain any new factor as regards the decision contained in the letter of 2 December 2004 and there was no re-examination of the applicant’s position, those letters are merely decisions confirming the decision of 2 December 2004. Consequently, since the latter was not challenged within a period of two months from the date of its notification to the applicant and an additional 10 days on account of distance as referred to in Article 102(2) of the Rules of Procedure, the action must be dismissed as inadmissible. | T-59/05
Evropaiki Dynamiki | 53-54 | ECT-230-impl | 53 First, as is clear from the documents before the Court and as has been pointed out by the Commission, without objection from the applicant, the applicant passed the stage of selection of tenderers, since it was permitted to lodge a tender.
54 In those circumstances, even if the complaint as to the vagueness of the specifications relating to the phase of selection of tenderers were well founded, the applicant has not demonstrated any interest in challenging those specifications, as the Commission correctly points out, inasmuch as the applicant passed that stage. | T-59/05
Evropaiki Dynamiki | 82 | ECT-230impl | 82 It is clear from settled case-law that the Commission enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Community Courts is limited to checking compliance with the applicable procedural rules and with the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20; Case T-145/98 ADT Projekt v Commission [2000] ECR II-387, paragraph 147, and Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II-2627, paragraph 47). | T-495/04
Belfass | 35-38 | ECT-230 | 35 As a preliminary point, the Court finds that the Council’s position consists of challenging the admissibility of the present action inasmuch as, according to the Council, it is truly directed only against the specifications. The latter constitute a challengeable act, the lawfulness of which was not contested within the prescribed period.
36 It must, however, be held that the annulment sought in the present action is that of the Council’s decision of 13 October 2004 not to accept the applicant’s tenders submitted in response to the call for tenders and that it is for the purposes of the annulment, and thus incidentally, that the applicant challenges the lawfulness of the specifications.
37 Accordingly, the issue which arises is not that of the admissibility of the action for annulment in so far as that action is alleged to be directed against the specifications, but that of the admissibility of the plea relating to the unlawfulness of that document which is invoked in that action for annulment.
38 In order to rule on that issue, it is necessary to determine whether a document relating to a call for tenders, such as the specifications at issue, is an act which is capable, as the Council submits, of being the subject of a direct action brought under the fourth paragraph of Article 230 EC and, accordingly, whether the applicant should have brought proceedings to challenge the specifications, on the basis of that provision, within the period of two months laid down under the fifth paragraph of Article 230 EC. | T-495/04
Belfass | 39-44 | ECT-230
ECT-249 | 39 The fourth paragraph of Article 230 EC provides that any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
40 According to settled case-law, natural or legal persons other than the person to whom a measure is addressed can claim to be individually concerned, for the purposes of the fourth paragraph of Article 230 EC, only if they are affected by the measure in question by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 36; and Case C-263/02 P Commission v Jégo-Quéré [2004] ECR I-3425, paragraph 45).
41 In the present case, the Court finds that it is not possible to take the view that the specifications in question are of individual concern to the applicant.
42 First, contrary to what the Council submits, the fact that the specifications were sent individually to preselected tenderers, and thus to the applicant, on 23 June 2004, under the restricted procedure, cannot distinguish the applicant individually for the purposes of the fourth paragraph of Article 230 EC. The specifications, like each of the other documents relating to the call for tenders issued by the Council in the present case and of which the specifications form part, apply to objectively determined situations and produce legal effects with respect to categories of persons envisaged generally and in the abstract. They are therefore of a general nature and it cannot be held that their communication to each of a number of undertakings preselected by the contracting authority allows each of those undertakings to be distinguished individually from all other persons for the purposes of the fourth paragraph of Article 230 EC.
43 Secondly, the Council is wrong to rely on the judgment in Grossmann Air Service, cited in paragraph 30 above, in order to establish that it was open to the applicant to challenge the specifications in question. It must be pointed out that that judgment was delivered by the Court of Justice in response to a question referred for a preliminary ruling relating to the interpretation of Article 1(3) and Article 2(1)(b) of Directive 89/665. The Council did not deny that the provisions of Directive 89/665, as amended, are therefore binding only on the Member States and not on the Community institutions. Furthermore, as the Council acknowledged at the hearing, it is clear that the Community legislation relating to the award of public service contracts by the Community institutions which is applicable in the present case contains no provision similar to those which are set out in Directive 89/665. Lastly, contrary to the situation which gave rise to the judgment in Grossmann Air Service, cited in paragraph 30 above, the criterion which features in the specifications and is challenged by the applicant did not prevent it from participating effectively in the contract award procedure in question. On the contrary, the documents before the Court show that the applicant, like the other tenderers included in the list drawn up after the preselection stage, was able to submit a tender for Lot No 2. Consequently, the interpretation given by the Court of Justice in the judgment in Grossmann Air Service, cited in paragraph 30 above, of the provisions of Directive 89/665, as amended, cannot be applied, by way of analogy, for the purposes of determining the admissibility of the present action in so far as it relates to Lot No 2.
44 It follows from the above that, since the specifications in question were not of individual concern to the applicant, it had no right to bring an action for annulment against the specifications under the fourth paragraph of Article 230 EC. Accordingly, there is no basis on which the Council can plead that the applicant had the right to challenge those specifications as a basis for opposing the incidental challenge by the applicant in these proceedings to the lawfulness of that document. | T-495/04
Belfass | 63 | ECT-230 | 63 It is settled case-law that the Council has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and that the Court’s review must be limited to verifying that there has been no serious and manifest error (Case 56/77 Agence européenne d’interims v Commission [1978] ECR 2215, paragraph 20; Adia interim v Commission, cited in paragraph 52 above, paragraph 49; and Case T-139/99 AICS v Parliament [2000] ECR II-2849, paragraph 39). | T-465/04
Evropaïki Dinamiki | 45 | ECT-230 | First, the Court has consistently held that the Commission enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. Review by the Community Courts is therefore limited to checking compliance with the applicable procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (Case T-211/02 Tideland Signal v Commission [2002] ECR II-3781, paragraph 33; Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II-2627, paragraph 47; see also, to that effect, Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20). | T-447/04-R
Capgemini | 65-67 | ECT-230-impl | 65. It must be observed that, in its application for interim measures, the applicant makes a distinction between, on the one hand, the grounds of annulment of the decision of 13 September 2004 (paragraphs 21 to 29 above) and, on the other, the grounds of annulment referring to the decision of 22 October 2004 (paragraphs 30 to 33 above).
66. On that point the President considers that, were the decision of 13 September 2004 rejecting the applicant's bid and accepting the bid of a third party to be annulled, the decision of 22 October 2004 would be deprived of its legal basis. The latter decision would consequentially be vitiated by illegality and would therefore also have to be annulled.
67. It is therefore sufficient at an initial stage to examine whether the grounds of annulment of the decision of 13 September 2004, as set out in the application for interim measures, appear prima facie to be well founded. | T-447/04-R
Capgemini | 69 | ECT-230 | 69. It should further be observed, also as a preliminary matter, that, in accordance with settled case-law, the Commission has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court's review should be limited to checking that there has been no serious and manifest error (Case 56/77 Agence européenne d'interims v Commission [1978] ECR 2215, paragraph 20, and Case T-19/95 Adia interim v Commission [1996] ECR II-321, paragraph 49). | T-148/04
TQ3 Travel Solutions | 47 | ECT-230 | 47. As a preliminary point, it should be recalled that the Commission enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers (Case T-145/98 ADT Projekt v Commission [2000] ECR II-387, paragraph 147, and Case T169/00 Esedra v Commission [2002] ECR II609, paragraph 95). | T-104/04
Adviesbureau Ehcon | 46-48 | ECT-230
ECT-232
ECT-288
ECS-46 | 46. The fact that the applicant submitted two claims to the Commission, on 20 September 1999 and 12 November 2001, for compensation for the loss it claims to have suffered does not lead to a different result, since it is not disputed that those claims were not followed by proceedings under Article 230 EC or 232 EC.
47. In accordance with Article 46 of the Statute of the Court of Justice, the period of limitation is interrupted only if proceedings are instituted before the Court or if prior to the proceedings an application is made to the relevant institution of the Community; however, in the latter case, interruption only occurs if the application is followed by proceedings within the time-limit determined by reference to Article 230 EC or 232 EC (Giordano v Commission , paragraph 28 above, paragraph 6; Case T-222/97 Steffens v Council and Commission [1998] ECR II4175, paragraphs 35 and 42; and order in Jestädt v Council and Commission , paragraph 28 above, paragraph 47).
48. Consequently, since the application was lodged on 8 April 2004, that is, more than seven years after 20 March 1997, the point from which the five-year limitation period started to run, this action, in so far as it seeks compensation for those losses, must be declared time-barred and therefore inadmissible. | T-345/03
Evropaiki Dynamiki | 42-45 | ECT-230 | 42 By the first head of claim in its application, the applicant seeks annulment of the Commission’s decision to evaluate its tender as unsatisfactory. By its second head of claim, the applicant seeks an order that the Commission re-evaluate its tender.
43 As regards the first head of claim, it must be noted that the Commission did not decide that the applicant’s tender was unsatisfactory.
44 Moreover, by writing on the copy of the decision to award the contested contract which was submitted to the Court as an annex to the application the words ‘contested measure’, the applicant itself indicated that it considered that measure to be the subject of its application for annulment.
45 As a consequence, the first head of claim seeks annulment of the decision to award the contested contract to a tenderer other than the applicant, whose tender was considered to be better (‘the contested decision’). | T-345/03
Evropaiki Dynamiki | 46-47 | ECT-230 | 46 As regards the second head of claim, it is settled case-law that the Community judicature is not entitled, when exercising judicial review of legality, to issue directions to the institutions; rather, it is for the administration concerned to adopt the necessary measures to implement a judgment given in proceedings for annulment (Case T-67/94 Ladbroke Racing v Commission [1998] ECR II-1, paragraph 200, and Joined Cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services and Others v Commission [1998] ECR II-3141, paragraph 53).
47 Accordingly, the applicant’s second head of claim must be rejected as inadmissible in so far as it seeks an order that directions be issued to the Commission. | T-332/03
ESN | 53-58 | ECT-230-impl | 53 Le Tribunal constate que la défenderesse n’a pas contesté l’affirmation de la requérante selon laquelle ni au moment de la soumission de l’offre par la requérante, ni par après, la requérante et ses partenaires n’ont constitué une société ou une société momentanée au nom de laquelle la requérante aurait pu agir.
54 Dès lors qu’il n’est pas établi que Ring consortium a été légalement constituée, il y a lieu d’estimer que l’offre a été soumise en tant qu’offre conjointe au sens du point 2.3.1 du volume A du cahier des charges.
55 Partant, puisque aucun consortium n’était juridiquement constitué, l’offre ainsi présentée par la requérante et ses partenaires ne pouvait qu’être considérée comme étant une offre conjointe, au sens du point 2.3.1 du volume A du cahier des charges. En conséquence, la requérante ne pouvait être qualifiée de « partenaire principal » au sens dudit point. Dans de telles circonstances, les autres partenaires mentionnés dans l’offre soumise par la requérante ne pouvaient être considérés que comme des sous-traitants de la requérante.
56 Le Tribunal constate, par ailleurs, que la lettre du 1er août 2003, par laquelle la Commission a informé ces soumissionnaires que leur offre n’avait pas été retenue et à laquelle la décision attaquée était annexée, a été adressée uniquement à la requérante.
57 Enfin, la requérante a déclaré expressément n’avoir introduit le présent recours qu’en son propre nom.
58 Au vu de ce qui précède, il y a lieu de constater que la requérante agit uniquement en son propre nom. | T-04/01
Renco | 86 | ECT-230-impl | 86 The Court makes the preliminary point that, in regard to that matter, the Council had a wide discretion and the review of the Court must be limited to verifying the lack of a serious and manifest error. First of all, although the contract documents did not contain the formula in question, the invitation to tender and the contract documents clearly specified that the term of the contract was normally five years (see, in particular, paragraph 7 above). In fact, the application of the formula in question permitted an extrapolation, on the basis of the terms of the offers submitted by the three tenderers, of the total cost to the Council of the contract over five years taking into consideration the different characteristics of the jobs in parts A, B and C of the summary. Although the tender price of EUR 3 946 745.49 per annum submitted by the applicant (see paragraph 15 above) was lower than the annual price of the other two tenders, the extrapolation made by the Council enabled it to compare the overall economic advantages of the three tenders in the light of the five-year term of the contract and the specific characteristics of the jobs specified in parts A, B and C of the summary. That enabled the Council to judge that the applicant's tender was the most expensive in the long term. The Court finds that, although the formula stated in paragraph 85 above was not given in the contract documents, the use of such a formula was nevertheless foreseeable and reasonable, particularly in the light of the duration of the contract in this case. | T-183/00
Strabag | 27-30 | ECT-230 | 27 Under the fourth paragraph of Article 230 EC, 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 (Case C-403/96 P Glencore Grain v Commission [1998] ECR I-2405, paragraph 40).
28 It should be pointed out that a decision relating to the award of a contract to a single tenderer inevitably and inseparably entails a corresponding decision not to award the contract to the other tenderers. Since the Council awards the contract to one tenderer, the offers of the other tenderers are automatically rejected, and there is no need to adopt other decisions in that regard. It must therefore be held that the formal communication of the result of the tendering procedure to the rejected tenderers does not mean that a decision other than the decision awarding the contract will be adopted for the express purpose of stating a rejection.
29 In the present case the contested decision was formally addressed to De Waele. Therefore, it had the effect of awarding the contract in question to De Waele and, by so doing, of rejecting the offers of the other two tenderers. It follows that the contested decision is of direct and individual concern to the applicant and that it may be the subject of an action for annulment brought by the applicant.
30 It follows from the foregoing that the application is admissible. | T-183/00
Strabag | 73 | ECT-230-impl | 73 It is settled case-law that the Council has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and that the Court's review must be limited to verifying that there has been no serious and manifest error (Case 56/77 Agence européenne d'interims v Commission [1978] ECR 2215, paragraph 20; Adia interim v Commission, cited above, paragraph 49, and Case T-139/99 AICS v Parliament [2000] ECR II-2849, paragraph 39). | T-169/00
Esedra | 95+152 | ECT-230-impl | 95 On this point, it must be observed that the Commission has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court's review must be limited to verifying that there has been no serious and manifest error (see the judgments in Case 56/77 Agence Européenne d'Intérims v Commission [1978] ECR 2215, paragraph 20; the case of Adia Intérim v Commission, cited above, paragraph 49, and Case T-139/99 AICS v Parliament [2000] ECR II-2849, paragraph 39).
.....
152 As a preliminary point, it must be observed that, with regard to the question under consideration, the Commission has a broad discretion and the Court's review must be limited to verifying that there has been no serious and manifest error (see paragraph 95 above). | T-139/99
Alsace | 28-34 | ECT-230 | 28 In accordance with settled case-law, an action brought by a natural or legal person is admissible only if that person can show a legal interest in bringing proceedings (judgment in Case T-117/95 Corman v Commission [1997] ECR II-95, paragraph 83 and order in Case T-5/99 Andriotis v Commission and Cedefop [2000] ECR II-0000, paragraph 36).
29 It is true that the applicant has confined itself to seeking the annulment of the decision not to accept its tender. It is also true that the applicant stated that it was unable to satisfy all the conditions laid down by the Parliament in the description of the services to be provided.
30 However, in its tender the applicant stated that it was bidding for lot no 1 daily segment outside peak periods. It stated that it was unable to provide transport services during peak periods, that is to say from 07.00 hrs to 09.00 hrs and from 19.00 hrs to 22.00 hrs owing to the fact that the provision of such services was technically and financially not feasible. In that connection the applicant emphasised that no undertaking could make available so many vehicles during the peak periods without subcontracting to taxi operators working in breach of the legislation. In the document appended as Annex 2 to its tender, it stated that to use taxis to transport persons in unmarked vehicles under the contract with the Parliament was contrary to the ban under French legislation on taxis being operated for valuable consideration without their distinctive markings (see paragraph 11 above).
31 By a letter dated 11 May 1999 the Parliament replied that it was for the competent French judicial authorities and not for it to interpret the French legislation. However, it affirmed that it had available to it no information which would lead it to believe that Coopérative Taxi 13 was not observing the conditions of the invitation to tender. Besides, the Parliament stated that no reference had been made to it by any administrative or judicial authority to challenge the conditions under which the contract at issue was being implemented (see paragraph 18 above).
32 It follows that the present dispute primarily concerns the question whether the Parliament was entitled to take the view that Coopérative Taxi 13 was able to observe the conditions for the performance of the contract at issue in accordance with French legislation.
33 Accordingly, the Parliament cannot claim that the applicant has no legal interest in bringing proceedings on the ground that it submitted a tender which was in any event unacceptable. Inasmuch as annulment of the contested decision, owing to the fact that use of taxis under the contract at issue is not permitted under French legislation, would entail reopening the tender procedure, the applicant does indeed have a legal interest in bringing the present proceedings in order to be able to submit a fresh tender without being faced by competition from taxi companies operating outside the legislation.
34 Accordingly, the allegation by the Parliament that the present action is inadmissible must be rejected. | T-139/99
Alsace | 39-40 | ECT-230 | 39 Like the other institutions, the Parliament has a wide discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court's review should be limited to checking that there has been no serious and manifest error (see Case 56/77 Agence Européenne d'Intérims v Commission [1978] ECR 2215, paragraph 20, Case T-19/95 Adia Intérim v Commission [1996] ECR II-321, paragraph 49, and Case T-203/96 Embassy Limousines & Services v Parliament [1998] ECR II-4239, paragraph 56).
40 Furthermore, under the second paragraph of Article 230 EC, the Court has jurisdiction, in the context of annulment proceedings, to adjudicate in actions for lack of competence, infringement of essential procedural requirements, infringement of the EC Treaty or of any rule of law relating to its application, or misuse of powers. It follows that the Court cannot treat the alleged infringement of French legislation as a question of law for which unlimited judicial review is available. Review of that kind is a matter exclusively for the French authorities. | T-203/96
Embassy Limousines | 56 | ECT-230 [ex 173]-impl | 56 In addition, it must be recalled that the Parliament has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court's review should be limited to checking that there has been no serious and manifest error (see Case 56/77 Agence Européenne d'Intérims v Commission [1978] ECR 2215, paragraph 20, and Case T-19/95 Adia Intérim v Commission [1996] ECR II-321, paragraph 49). | T-191/96 & T-106/97
Succhi di Frutta | 57-63 | ECT-230 | 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 (Simmenthal v Commission, 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] ECR-SC 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] ECR-SC II-1017, paragraph 34; and Case T-100/96 Vicente-Nuñez v Commission [1998] ECR-SC 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. | T-191/96 & T-106/97
Succhi di Frutta | 98-103 | ECT-230 | 98 It thus follows that, by 31 October 1996 at the latest, the applicant had knowledge, at the very least, of the fact that the Commission had adopted a decision allowing the substitution of nectarines for the fruit prescribed in payment for the supplies provided by Trento Frutta and Loma, and that the content of that decision was reiterated in Commission Memorandum No 29903 of 23 July 1996.
99 That finding finds support in the fact that, in paragraph 23 of its application in Case T-191/96, lodged at the Registry of the Court of First Instance on 25 November 1996, the applicant referred to the possibility of substitution of nectarines for the fruit specified in the notice of invitation to tender.
100 Even if, as it asserts, the applicant did not have knowledge of the whole text of the Decision of 22 July 1996 before 30 January 1997, the date on which the defence was lodged in Case T-191/96, with a copy of that decision annexed to it, it must be borne in mind that, according to the settled case-law of the Court of Justice, it is for a party who has knowledge of a decision concerning it to request the whole text thereof within a reasonable period (order in Ferriere Acciaierie Sarde v Commission, paragraph 18).
101 However, in this case, it has not been established that the applicant asked the Commission to provide it with the full text of the Decision of 22 July 1996, either after the meeting of 26 July 1996, or even after AIMA's pleading had been lodged at the Tribunale Amministrativo Regionale, Lazio, on 21 October 1996, or even after the hearing before that court on 31 October 1996.
102 In those circumstances, the applicant is not justified in claiming that the point from which time starts to run for bringing proceedings must be fixed at the date of 30 January 1997. It is clear from the foregoing that a reasonable period for requesting the full text of the Decision of 22 July 1996 had long since elapsed by that date.
103 It follows that the action brought on 9 April 1997 must be held to be out of time and, accordingly, inadmissible.
[Q: 9 April is in any case more that 2 months after 30 January] | T-19/95
Adia Interim | 49 | ECT-230 [ex 173]-impl | 49 Lastly, the Court considers that the Commission did not commit a manifest error in assessing the applicant' s organizational ability. In this regard, the Court recalls that the Commission has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court' s review should be limited to checking that there has been no serious and manifest error (Case 56/77 Agence Européenne d' Interims v Commission [1978] ECR 2215, paragraph 20). In this case, the Court finds, with regard to the points awarded to the applicant for its customer service, that it is undisputed that the applicant' s tender ° unlike that of Ecco ° made no reference to the quality of the customer service which it undertook to provide and hence the Commission made no manifest error of assessment in giving Ecco three points more than the applicant for its customer service. As regards the points awarded to the applicant for flexibility, unlike Ecco' s tender, that of the applicant did not undertake to provide a "contact person" permanently at the Commission' s offices, with the result that the Commission did not make any manifest error of assessment in awarding Ecco two points more than the applicant for flexibility. | 118/83
CMC | 26-29 | ECT-230 [ex 173] | 26 The Commission challenges the jurisdiction of the court to hear actions regarding invitations to tender in European development fund projects. According to the Commission, it is the ACP state concerned which is responsible for preparing, negotiating and concluding contracts in relation to a particular project. It follows that the direct interlocutor of the tenderers is the ACP state and not the Commission. It is that state which takes the various decisions required in the course of the proceedings, including the final decision to award the contract. Any dispute regarding the award of a contract is necessarily a dispute between the tenderer and the ACP state and must therefore be resolved by arbitration in accordance with article 132 (1) of the convention, which applies equally to disputes arising between an ACP state and an unsuccessful tenderer. In the absence of any act of the Commission addressed to the applicants the court therefore has no jurisdiction in the matter. According to the Commission both the claim for annulment and the claim for damages are inadmissible.
27 The applicants deny that recourse to arbitration is an appropriate solution, at least in the case of an unsuccessful tenderer. They consider that the Commission cannot escape from its obligation to account before the court of justice for its conduct in carrying out the functions attributed to it in the context of the European development fund.
28 In so far as the application is based on articles 173 and 175 of the EEC treaty reference should be made to the considerations set out in the judgment of 10 July 1984 (case 126/83, STS v Commission, (1984) ECR 2769), where the court analysed in the following terms the relationships which arise in connection with the award of public works contracts financed by the European development fund between the Commission and the ACP state concerned on the one hand and between that state and undertakings which submit tenders or are awarded contracts on the other : ' contracts financed by the fund remain national contracts which the authorities of each ACP state have the power to prepare, negotiate and conclude. It is for the Commission, on the other hand, to adopt on behalf of the community the financing decisions required for the implementation of the projects and programmes decided upon in agreement with the ACP states. Such a division of powers requires close collaboration between the Commission and the ACP state concerned in the procedure for placing public contracts financed by the fund, and according to the general scheme of the convention such collaboration is restricted to the two partners present at the time.... It is thus clear that the measures adopted by the Commission ' s representatives during that procedure, whether approvals or refusals to approve, endorsements or refusals to endorse, are solely intended to establish whether or not the conditions for community financing are met. They are not intended to interfere with the principle that the contracts in question remain national contracts which the ACP states alone are responsible for preparing, negotiating and concluding, and they cannot have that effect.... For their part, undertakings which submit tenders for or are awarded the contracts in question remain outside the exclusive dealings conducted on this matter between the Commission and the ACP states ; the measures adopted by the Commission ' s representatives in the course of the procedure for the placing or implementation of those contracts cannot be regarded as being addressed to them and they cannot claim that those measures are "of direct concern" to them within the meaning of the second paragraph of article 173 of the EEC treaty. Such undertakings have legal relations only with the ACP state which is responsible for the contract, and measures adopted by the representatives of the Commission cannot substitute in relation to them a community decision for the decision of the ACP state, which has sole power to conclude and sign that contract.'
29 It follows from those considerations that in this case there is no measure capable of being the subject of proceedings under article 173 of the treaty; nor can it be said that there is a failure to adopt such a measure in regard to the applicants in respect of which an action may be brought under article 175. As a result it also follows that the applicant ' s claims are unfounded in so far as they seek to obtain the production of documents which might constitute evidence of an act or failure to act on the part of the Commission in respect of which an action might lie. 30 the application is therefore inadmissible in so far as it is based on articles 173 and 175 of the treaty. | 118/83-R
CMC | 33-38 | ECT-230 [ex 173]
ECT-243 [ex 186 | 33 The Commission claims that the court has no jurisdiction to entertain either the main application or the application for the adoption of interim measures. It raises two fundamental objections regarding the jurisdiction of the court and an objection of inadmissibility based on two grounds with particular reference to the action for annulment.
34 In the first place , the Commission argues that the ACP state is responsible for the preparation , negotiation and conclusion of the contract. It follows that it is the ACP state and not the Commission which deals directly with the tenderers. Whilst it is true that the convention provides for cooperation between the community and the ACP state , the fact remains that the state in question takes the various decisions required in the course of the procedure , including the final decision on the award of the contract. The cooperation to be given by the Commission in that connection is therefore said to be of a purely ' ' internal ' ' nature.
35 In the second place , the Commission contends that article 132 of the convention and the joint declaration which forms the subject-matter of annex xiii have set up an arbitration procedure , with the result that any dispute between a tenderer and an ACP state falls outside the jurisdiction of the court.
36 With particular reference to the action for annulment , the Commission argues that in this case there was , on its part , no decision within the meaning of the second paragraph of article 173 of the EEC treaty. The ' ' order ' ' to eliminate the applicants and to give preference to Rush and Tompkins bv which , the applicants allege , the Commission gave to the Ethiopian authorities and which came to the applicants ' knowledge when they visited Addis Ababa on 15 march 1983 , did not , according to the Commission , constitute a measure which could be the subject of annulment. In any event , the action against that ' ' order ' ' is out of time since the applicants themselves state that it came to their knowledge on 15 march 1983.
37 The answers to all those questions , the complexity of which should not be underestimated , is a matter for the court ' s decision on the substance of the main application. However , since the preliminary objections raised by the Commission regarding the jurisdiction of the court and the admissibility of the main application constitute a prerequisite for the decision on the admissibility of the application for the adoption of interim measures , the judge hearing that application cannot escape the necessity of resolving provisionally the various problems raised. From his point of view , it is sufficient if he can establish , with a sufficient degree of probability , that there is a basis , albeit partial , on which the court may found its jurisdiction in order to enable him to acknowledge the existence of a legitimate interest in the adoption of interim measures designed to preserve the existing position pending a decision on the substance of the case.
38 Subject to those reservations , the following observations may be made with regard to the preliminary objections raised by the Commission. | 118/83-R
CMC | 39-44 | ECT-230 [ex 173]
ECT-243 [ex 186 | 39 As the Commission rightly pointed out , the tenderers established a legal relationship solely with the ethiopian national authority and more particularly with the national authorizing officer , who , according to the information supplied during the proceedings , is the ethiopian government acting , for the purposes of the present project , through the intermediary of EELPA , under the terms of clause it-i , paragraph (2), of the conditions of tender.
40 Nevertheless the provisions of the convention at the same time impose specific obligations on the Commission and more particularly on the chief authorizing officer with regard to ensuring equality of conditions for participation in invitations to tender , the elimination of discrimination , selection of the tender which is economically the most advantageous , the open nature of tenders and the participation on equal terms of all natural persons and companies or firms falling within the scope of the EEC treaty.
41 It is impossible therefore to accept the view that , by participating in a tender organized , under the terms of the convention , by an ACP state , in close cooperation with the community institutions , with a view to the execution of a project financed entirely by the european development fund , an undertaking established in the community is automatically placed outside the judicial protection afforded to it by the provisions of the EEC treaty.
42 it does not appear that article 132 , concerning the settlement of disputes , and the joint declaration on that subject , embodied in annex xiii to the convention , has the effect of eliminating any judicial protection with may be available under the treaty. As the Commission has acknowledged , the convention could not derogate , as far as community subjects are concerned , from the provisions of the EEC treaty governing access to the court. Moreover , it was apparent from the arguments of the parties that it remains doubtful whether article 132 applies only to disputes which may arise , on the occasion of the placing or performance of a contract , between the ACP state and the undertaking which is awarded the contract or whether that provision is also applicable to disputes which arise between the ACP state and any undertaking which is not awarded the contract but has participated in the tender procedure. That doubt is increased by the uncertainty regarding the interpretation which the ACP states , and ethiopia in particular , may give to the terms of article 132 and annex xiii.
43 Moreover , the question arises whether , in arbitration proceedings initiated pursuant to article 132 and annex xiii , that is to say within the framework of the procedure for conciliation and arbitration of the international chamber of commerce , acts of the Commission may be challenged and whether an arbitral decision to be given in that context may contain a judgment on the validity of acts of the Commission or establish a basis for community liability.
44 Consequently , whilst it seems certain that the contract concluded between the ACP state and the successful tenderer falls outside the juridictionof the court , that does not mean that there can be not judicial review under the EEC treaty of acts of the Commission in the context of the tender procedure set up by the convention. | 118/83-R
CMC | 45-47 | ECT-230 [ex 173] | 45 As regards the objection of inadmissibility raised by the Commission in relation to the action for annulment , in view of the fact that it would be impossible to identify , in the cooperative decision-making process set up by the convention , a decision of the Commission which could be the subject of an action , it should be observed that the functions performed by the Commission in connection with the various stages of the preparation of projects and with putting those projects out to tender are undoubtedly closely linked to the acts of the ACP state benefiting from them. Nevertheless , on the one hand , all the decisive operations relating to the award of the contract are subject to the approval of the Commission and , on the other hand , the Commission , in its capacity as manager of the european development fund , retains control over the allocation and transfer of funds earmarked for the execution of the various projects until such time as they are used.
46 Although it has not been possible at this stage to establish whether there was an ' ' order ' ' by the Commission to eliminate the applicants and to give rush and tompkins bv preference over them , it is clear from the information supplied by the Commission itself that the contract concluded with rush and tompkins bv on 6 july 1983 became effective only by virtue of the approval of the chief authorizing officer and the endorsement of the local Commission delegate.
47 Under those circumstances , it cannot be excluded that a thorough examination might reveal the existence of an act of the Commission which can be isolated from its context and which may be of such a nature as to enable an action to be brought for its annulment. | 118/83-R
CMC | 48 | ECT-230 [ex 173] | 48 The Commission ' s objection that the action is out of time must be rejected. The applicants have explained at great length the difficulties which they experienced in obtaining information regarding the attitude taken by the Commission in this case and the reasons for their elimination. The information which they were able to obtain in addis ababa on 15 may 1983 was no mor than hearsay. Such information cannot therefore be regarded as fulfilling the condition laid down by the third paragraph of article 173 of the EEC treaty. | 118/83-R
CMC | 49 | ECT-230 [ex 173]
ECT-243 [ex 186 | 49 It follows from the foregoing that , although the placing of the public works contract in question occurred outside the sphere of jurisdiction of the community , there are nevertheless sufficient connecting factors between the circumstances of the dispute and the provisions of the treaty governing access to the court - namely , the active participation of the Commission in the process for reaching a decision on the award of the contract , the financing of the project in question by the european development fund and the judicial protection to which the applicants are , as communty subjects , entitled to claim in the implementation of a convention concluded by the community - to allow the finding that there exists a legitimate interest in the adoption of interim measures pending the court ' s decision on the questions of jurisdiction and admissibility raised by the Commission. | 56/77
Agence | 20 | ECT-230 [ex 173]-impl | 20 Although the court has jurisdiction to review the judgment of the departments of the Commission to decide whether there is any misuse of powers or a serious and manifest error of judgment it must , however , respect the discretion given to the competent authorities , including the purchases and contracts advisory committee , in assessing the factors to be taken into account in the interests of the department for the purpose of deciding to enter into a contract for the supply of temporary staff to an institution. |
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