Opinion of the Advocate General — ECLI:EU:C:2002:610
Date: 2002-10-24
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Food aid;Development cooperation;External relations
Procedure: Action for annulment;Appeal - unfounded
Origin: Italy

Summary of the Judgment 1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision amending, after the award of a contract, the conditions for the award – Action brought by an unsuccessful tenderer – Admissible (EC Treaty, Art. 173, para. 4 (now, after amendment, Art. 230 EC, para. 4)) 2. Actions for annulment – Interest in bringing proceedings – Action brought by an unsuccessful tenderer contesting a decision directly affecting the conditions of the tenders to be submitted by the individual tenderers – Admissible (EC Treaty, Art. 173 (now, after amendment, Art. 230 EC)) 3. Agriculture – Common agricultural policy – Food aid – Programmes for the free supply of agricultural products intended for the people of Armenia and Azerbaijan – Regulation No 228/96 – Contract award procedure – Principles of the equal treatment of tenderers and of transparency – Scope – Amendment by the contracting authority, after the award of the contract, of one of the conditions for the award – Breach (Commission Regulation No 228/96) 1. In the context of a tendering procedure, the tenderers must enjoy a right of recourse to the Community judicature to obtain a review of the legality of the procedure as a whole, whether or not their respective tenders have ultimately been accepted. If successful tenderers alone are entitled to challenge, if necessary, a decision amending the conditions of the invitation to tender, infringements committed by the contracting authority after the contract had been awarded, but none the less casting doubt on the legality of the tendering procedure as a whole, could not be penalised as long as they did not affect the situation of the successful tenderer or tenderers. An outcome of that kind would be contrary both to the fourth paragraph of Article 173 of the Treaty (now, after amendment, the fourth paragraph of Article 230 EC), which provides for a means of redress for persons directly and individually concerned by the contested measure, and to the fundamental principle that, in a community governed by the rule of law, adherence to legality must be properly ensured. As a result, an unsuccessful tenderer must be regarded as individually concerned by a decision, albeit adopted subsequently by the contracting authority, capable of directly affecting the manner in which that tenderer actually formulated its tender and the equality of opportunity of all the undertakings taking part in the procedure concerned. (see paras 59, 61-64, 66) 2. In the context of a tendering procedure, an unsuccessful tenderer has an interest in the annulment of a decision directly affecting the conditions of the tenders to be submitted by the individual tenderers, in particular, in obtaining from the Community judicature a declaration of illegality, if appropriate, on the part of the contracting authority. Such a declaration can then be taken as the basis for any action for damages aimed at properly restoring the unsuccessful tenderer to its original position. (see paras 82-83) 3. In view of the significance, objective and effectiveness of the principles of the equal treatment of tenderers and of transparency, those principles must also be observed in the case of a special tendering procedure such as that implemented by Regulation No 228/96 on the supply of fruit juice and fruit jams intended for the people of Armenia and Azerbaijan, while any special features of that procedure can be taken into account if necessary. Against that background, it falls to the Commission, in its capacity as contracting authority, strictly to comply with the criteria which it has itself laid down, and to do so up to the end of the stage during which the relevant contract is performed. Therefore, it may not alter the general scheme of the invitation to tender by subsequently proceeding unilaterally to amend one of the essential conditions for the award, in particular if it is a condition which, had it been included in the notice of invitation to tender, would have made it possible for tenderers to submit a substantially different tender. Where there was no express authorisation to that effect in the relevant provisions, the contracting authority could not, once the contract had been awarded and, moreover, by a decision which derogates in its substance from the provisions of the earlier regulations, amend a significant condition of the invitation to tender, such as the condition relating to the arrangements governing payment for the products to be supplied, without distorting the terms governing the award of the contract, as originally laid down. Furthermore, a practice of that kind would inevitably lead to infringement of the principles of transparency and equal treatment as between tenderers since the uniform application of the conditions of the invitation to tender and the objectivity of the procedure would no longer be guaranteed. (see paras 112, 115-117, 120-121)