CELEX: 61983CJ0126
Second Lomé Convention
Public works contracts
Application for a declaration that a measure approving the award of contracts is void
Objection of inadmissibility
Article 91 of the Rules of Procedure

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 6 JULY 1983 STS CONSORZIO PER SISTEMI DI TELECOMUNICAZIONE VIA SATELLITE SPA , ( HEREINAFTER REFERRED TO AS ' ' STS ' ' ), WHICH HAS ITS REGISTERED OFFICE IN MILAN , ITALY , BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT THE MEASURE BY WHICH THE REPRESENTATIVE OF THE COMMISSION APPROVED THE AWARD TO THE FRENCH UNDERTAKING TELSPACE OF TWO PUBLIC WORKS CONTRACTS FOR THE PROVISION THROUGH THE FIFTH EUROPEAN DEVELOPMENT FUND OF A SATELLITE EARTH STATION AND RELATED FACILITIES IN KIRIBATI AND IN PAPUA NEW GUINEA WAS VOID .
2 THE COMMUNITY DECIDED TO FINANCE CERTAIN WORKS CONNECTED WITH THE PROVISION OF INTERNATIONAL AND INTER-REGIONAL TELEPHONE , TELEGRAPH AND TELEX STATIONS , ON THE BASIS OF A PROJECT PRESENTED BY FOUR ACP STATES WHICH IN ADDITION TO KIRIBATI AND PAPUA NEW GUINEA INCLUDED FIJI AND TUVALU . THE FINANCE WAS AVAILABLE AS PART OF THE FINANCIAL AND TECHNICAL COOPERATION PROVIDED FOR IN TITLE VII OF THE SECOND ACP-EEC CONVENTION SIGNED AT LOME ON 31 OCTOBER 1979 ( HEREINAFTER REFERRED TO AS ' ' THE CONVENTION ' ' ) AND APPROVED BY COUNCIL REGULATION NO 3225/80 OF 25 NOVEMBER 1980 ( OFFICIAL JOURNAL 1980 , L 347 , P . 1 ), OUT OF THE RESOURCES OF THE FIFTH EUROPEAN DEVELOPMENT FUND ( HEREINAFTER REFERRED TO AS ' ' THE FUND ' ' ) SET UP BY THE INTERNAL AGREEMENT OF 1979 ( OFFICIAL JOURNAL 1980 , L 347 , P . 210 ), FOR WHICH     THE IMPLEMENTING PROVISIONS WERE LAID DOWN IN FINANCIAL REGULATION 81/215/EEC OF 17 MARCH 1981 ( OFFICIAL JOURNAL 1981 , L 101 , P . 12 ).
3 IN ACCORDANCE WITH ARTICLE 155 OF THE CONVENTION , A FINANCING AGREEMENT FOR THE WORKS WAS DRAWN UP ON 10 DECEMBER 1982 BETWEEN THE COMMUNITY , REPRESENTED BY THE COMMISSION , AND THE ACP STATES CONCERNED , REPRESENTED BY THE SOUTH PACIFIC BUREAU FOR ECONOMIC COOPERATION , ( HEREINAFTER REFERRED TO AS ' ' THE SPEC ' ' .
4 THE CONTESTED CONTRACTS WERE CONCLUDED AS A RESULT OF AN INVITATION TO TENDER , IN ACCORDANCE WITH NOTICE NO 1861 PUBLISHED ON 1 OCTOBER 1982 ( OFFICIAL JOURNAL 1982 , S 189 , P . 4 ); THEY WERE SIGNED BY TELSPACE AND THE SPEC ON 13 APRIL AND 6 JUNE 1983 AND APPROVED BY THE COMMISSION ON 21 APRIL AND 9 JUNE 1983 .
5 ON BEING INFORMED ON 6 MAY 1983 BY A TELEX MESSAGE FROM THE SPEC THAT ITS TENDER HAD NOT BEEN ACCEPTED , STS LODGED AN APPLICATION UNDER ARTICLE 173 OF THE TREATY CLAIMING THAT THE COURT SHOULD :
DECLARE VOID , ON THE ONE HAND , THE MEASURE BY WHICH THE REPRESENTATIVE OF THE COMMISSION APPROVED THE PLACING OF THE CONTRACTS , INASMUCH AS IT ADVERSELY AFFECTS THE APPLICANT ' S RIGHTS BECAUSE IT INFRINGES THE RULES OF THE CONVENTION AND IS VITIATED BY ABUSE OF POWER , AND , ON THE OTHER HAND , ALL THE MEASURES WHICH AROSE OUT OF THE APPROVAL OF THOSE CONTRACTS ;
ORDER THE COMMISSION TO PRODUCE THE CONTESTED MEASURE WHICH IT HAS BEEN UNABLE TO SEE .
6 BY APPLICATION LODGED ON 19 AUGUST 1983 THE COMMISSION REQUESTED THE COURT TO DECIDE ON THE ADMISSIBILITY OF THE ACTION PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE WITHOUT GOING INTO THE SUBSTANCE OF THE CASE .
7 IN SUPPORT OF THAT APPLICATION THE COMMISSION RELIES UPON THREE ARGUMENTS , ALLEGING FIRST THAT THE MEASURE BY WHICH THE COMMISSION ' S REPRESENTATIVE APPROVES THE PROPOSAL FOR PLACING THE CONTRACT WHICH IS FORWARDED TO HIM BY THE NATIONAL OR REGIONAL AUTHORIZING OFFICER IS NOT A MEASURE WHICH MAY BE CHALLENGED UNDER ARTICLE 173 OF THE TREATY AND SECONDLY THAT EVEN IF SUCH APPROVAL IS A MEASURE WHOSE LEGALITY IS SUBJECT TO REVIEW , IT IS NEITHER ADDRESSED NOR OF DIRECT CONCERN TO THE APPLICANT .
8 STS CONTENDS THAT IN DECIDING WHETHER OR NOT TO APPROVE THE PLACING OF CONTRACTS THE REPRESENTATIVES OF THE COMMISSION EXERCISE A POWER OF CONTROL OVER THE DECISIONS OF THE REPRESENTATIVES OF THE ACP STATE . ALTHOUGH THE EFFECT OF THE CONTESTED MEASURE IS TO PERMIT THE PAYMENT OF FUNDS , IT REMAINS NONETHELESS AN ADMINISTRATIVE MEASURE . THUS THE DEFENDANT ' S ARGUMENT THAT THE APPLICATION IS INADMISSIBLE IS INCOMPATIBLE WITH THE TRADITIONAL PRINCIPLES OF ADMINISTRATIVE LAW INASMUCH AS THE CONTRACTS COULD NOT HAVE BEEN PLACED IF THE CONTESTED MEASURE HAD NOT BEEN ADOPTED .
9 BY VIRTUE OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY , 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 DECISION ADDRESSED TO ANOTHER PERSON , IS OF DIRECT AND INDIVIDUAL CONCERN TO THE FORMER .
10 IN ORDER TO DETERMINE WHETHER THE MEASURES BY WHICH AN AGENT OF THE COMMISSION APPROVED PUBLIC WORKS CONTRACTS TO BE FINANCED , ON THE CONDITIONS SET OUT ABOVE , BY THE FUND ARE CAPABLE OF FORMING THE SUBJECT-MATTER OF AN ACTION FOR A DECLARATION OF NULLITY ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY , IT IS NECESSARY FIRST TO EXAMINE THE RESPECTIVE POWERS OF THE COMMISSION AND THE ACP STATES IN THE PROCEDURE FOR THE PLACING OF SUCH CONTRACTS .
11 IN THAT REGARD , IT SHOULD BE NOTED FIRST THAT UNDER ARTICLES 108 ( 2 ) AND 120 OF THE CONVENTION THE ACP STATES ARE RESPONSIBLE FOR IMPLEMENTING THE PROJECTS AND PROGRAMMES DECIDED UPON IN CONJUNCTION WITH THE COMMUNITY AND FINANCED BY THE LATTER . IN PARTICULAR THEY ARE RESPONSIBLE FOR PREPARING , NEGOTIATING AND CONCLUDING CONTRACTS FOR CARRYING OUT SUCH OPERATIONS . BY VIRTUE OF ARTICLE 122 OF THE CONVENTION THE NECESSARY DECISIONS ARE ADOPTED BY THE NATIONAL AUTHORIZING OFFICER APPOINTED FOR THAT PURPOSE BY THE GOVERNMENT OF EACH ACP STATE CONCERNED .
12 BY VIRTUE OF ARTICLE 108 ( 5 ) OF THE CONVENTION , HOWEVER , IT IS THE COMMUNITY WHICH IS RESPONSIBLE FOR PREPARING AND ADOPTING FINANCING DECISIONS ON PROJECTS AND PROGRAMMES . UNDER ARTICLE 121 OF THE CONVENTION , IT APPOINTS THE CHIEF AUTHORIZING OFFICER OF THE FUND , WHO IS TO ENSURE THAT ALL FINANCING DECISIONS ARE CARRIED OUT AND IS RESPONSIBLE FOR MANAGING THE FUND ' S     RESOURCES . IN ORDER TO FACILITATE AND EXPEDITE THE IMPLEMENTATION OF PROJECTS FINANCED FROM THE FUND ' S RESOURCES , THE COMMISSION APPOINTS A DELEGATE TO REPRESENT IT IN EACH ACP STATE OR GROUP OF ACP STATES .
13 THE PROVISIONS OF THE CONVENTION SET OUT ABOVE THEREFORE SHOW THAT 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 .
14 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 .
15 THE SATISFACTORY IMPLEMENTATION OF FINANCING DECISIONS REQUIRES THAT THE COMPETENT AGENTS OF THE COMMISSION ENSURE , BEFORE ANY PAYMENTS ARE MADE OUT OF COMMUNITY FUNDS , THAT THE CONDITIONS FOR SUCH PAYMENTS ARE IN FACT FULFILLED . IN THAT CONNECTION , IT SHOULD BE NOTED IN PARTICULAR THAT ARTICLE 121 ( 2 ) OF THE CONVENTION CONFERS ON BOTH THE CHIEF AUTHORIZING OFFICER AND THE COMMISSION ' S DELEGATE THE TASK OF ENSURING ' ' EQUALITY OF CONDITIONS FOR PARTICIPATIONS IN INVITATIONS TO TENDER , . . . THAT THERE IS NO DISCRIMINATION AND THAT THE TENDER SELECTED IS ECONOMICALLY THE MOST ADVANTAGEOUS ' ' . FOR THAT REASON ARTICLES 122 AND 123 OF THE CONVENTION LAY DOWN A PROCEDURE FOR THE PLACING OF CONTRACTS WHICH ENABLES THE COMMISSION ' S REPRESENTATIVES TO ENSURE THAT THOSE CONDITIONS ARE FULFILLED . THUS THE NATIONAL AUTHORIZING OFFICER REPRESENTING THE ACP STATE PREPARES INVITATION TO TENDER DOSSIERS WHICH HE SUBMITS TO THE COMMISSION ' S DELEGATE FOR AGREEMENT , ISSUES INVITATIONS TO TENDER , PRESIDES OVER EXAMINATION OF THEM , DECIDES THE OUTCOME OF SUCH EXAMINATION AND TRANSMITS IT TO THE COMMISSION REPRESENTATIVE WITH A PROPOSAL FOR THE PLACING OF THE CONTRACT , AND FINALLY SIGNS THE CONTRACT . FOR HIS PART , THE COMMISSION ' S REPRESENTATIVE - EITHER THE DELEGATE OR THE CHIEF AUTHORIZING OFFICER - APPROVES THE INVITATION TO TENDER DOSSIER , APPROVES THE PROPOSAL FOR THE PLACING OF THE CONTRACT AND FINALLY ENDORSES BOTH THE CONTRACT ITSELF AND THE PAYMENT AUTHORIZATIONS ADOPTED FOR ITS IMPLEMENTATION .
16 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 .
17 IT WOULD THEREFORE BE INCOMPATIBLE WITH THE SOVEREIGNTY OF THE ACP STATES AND THE RESPONSIBILITIES RESERVED TO THEM BY THE CONVENTION FOR THE COMMISSION ' S AGENTS TO DEAL DIRECTLY , IN PLACE OF THE ACP STATES , WITH UNDERTAKINGS SUBMITTING TENDERS FOR OR AWARDING CONTRACTS FINANCED BY THE FUND ; INDEED , SUCH ACTION WOULD CONSTITUTE INTERFERENCE IN A SPHERE RESERVED SOLELY TO THE AUTHORITIES OF THOSE STATES .
18 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 .
19 FROM ALL THE CONSIDERATIONS SET OUT ABOVE IT FOLLOWS THAT THE MEASURE BY WHICH THE COMMISSION ' S REPRESENTATIVE APPROVED THE AWARD OF THE CONTESTED CONTRACTS TO TELSPACE IS NOT OF ' ' DIRECT ' '  CONCERN TO STS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY . ACCORDINGLY , THE APPLICATION BY STS MUST BE DISMISSED AS INADMISSIBLE , WITHOUT ITS BEING NECESSARY TO EXAMINE THE OTHER GROUNDS OF INADMISSIBILITY RELIED UPON BY THE COMMISSION .
20 IT SHOULD BE STATED THAT THIS JUDGMENT IS WITHOUT PREJUDICE TO OTHER PROCEEDINGS WHICH ANY UNDERTAKING CONCERNED MAY INSTITUTE EITHER AGAINST     THE COMMISSION , IN THE FRAMEWORK OF THE PROCEDURES LAID DOWN IN ARTICLE 178 , THE SECOND PARAGRAPH OF ARTICLE 215 AND ARTICLE 185 OF THE EEC TREATY , OR AGAINST THE ACP STATES , IN PROCEEDINGS AVAILABLE BEFORE THE NATIONAL COURTS OR IN ARBITRATION PROCEEDINGS PROVIDED FOR IN ARTICLE 132 OF THE CONVENTION .
Decision on costs
COSTS
21 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE STS HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS ,
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE .
2 . ORDERS THE APPLICANT TO PAY THE COSTS .