Judgment — ECLI:EU:T:1999:146
Date: 1999-07-09
Language of the case: Dutch
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations
Concepts: General;Budgetary rules;Assessment procedures;Scope of the legislation
Procedure: Action for damages - successful
Origin: Ireland

Summary of the Judgment
1. Non-contractual liability — Conditions — Illegality — Damage — Causal link
(EC Treaty, Art. 215, second para, (now Art. 288, second para., EC))
2. Budget of the European Communities — Financial regulation — Provisions applicable
to external aid — Public procurement financed by the PHARE Programme —
Respective roles of the beneficiary State and the Commission — Whether Community
liability may be incurred — Possible
(EC Treaty, Arts 178 and 215, second para, (now Arts 235 EC and 288, second para.,
EC))
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SUMMARY —CASE T-231/97
3. Budget of the European Communities — Financial regulation — Provisions applicable
to external aid — Public procurement financed by the PHARE programme —
Principle of sound administration — Meaning — Rights of defence of the undertakings
concerned — Scope
4. European Community public procurement contracts — Contract awarded on the basis
of an invitation to tender — Discretion of the institutions
1. In order for the Community to incur
non-contractual liability, a number of
conditions must be met: the conduct of
the Community institutions in question
must be unlawful; there must be real
and certain damage; and a direct causal
link must exist between the conduct of
the institution concerned and the
alleged damage.
2. Contracts financed by the PHARE
Programme must be regarded as
national contracts which are binding
only on the beneficiary State and the
economic operator. On the other hand,
responsibility for funding projects is
entrusted to the Commission. It would
therefore be wrong to dismiss the
possibility of an action for damages
against the Commission, since its acts
or conduct in connection with the
allocation or implementation of pro­
jects funded under the PHARE Pro­
gramme may cause damage to third
parties.
3. If the Commission is to comply with
the principle of sound administration
in the implementation of actions con­
ducted in the context of the PHARE
Programme, it must, when taking a
decision which may have serious finan­
cial consequences for certain indivi­
duals, check all information which
might have a bearing on the result.
Even if the legislation applicable to
public procurement financed under the
PHARE Programme does not give
tenderers the right to be heard by the
Commission before steps are taken to
ensure that the resources for PHARE
projects are economically managed,
respect for the rights of the defence in
any proceeding initiated against a per­
son and liable to culminate in a mea­
sure adversely affecting that person is a
fundamental principle of Community
law which must be guaranteed, even in
the absence of any specific rules con­
cerning the proceeding in question.
That principle requires that any person
who may be adversely affected by the
adoption of a decision should be placed
in a position in which he may effec­
tively make known his views on the
evidence against him which the Com­
mission has taken as the basis for its
decision.
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NEW EUROPE CONSULTING AND BROWN V COMMISSION
4. In a public tendering system such as the
PHARE Programme, the contracting
authority has a broad discretion in
deciding to award a contract. Conse­
quently, a tenderer cannot be certain of
securing the contract, even if he is
proposed by the evaluation committee
or, a fortiori, by virtue of the mere fact
that he has submitted a tender or
shown some interest.
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