Keywords

Summary



Keywords

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1. International agreements ° Second ACP-EEC Lomé Convention ° Provisions concerning financial and technical cooperation ° Awarding and performance of public works contracts ° Respective roles of the ACP State and the Commission ° Competence of the ACP State in the concluding and performance of contracts ° No contractual relationship between the contractor and the Commission ° Raising of the issue of the Community' s non-contractual liability vis-à-vis the contractor before the Court of First Instance ° Permissibility

(EEC Treaty, Art. 178 and Art. 215, second para.; Second ACP-EEC Lomé Convention of 31 October 1979, Art. 132)

2. International agreements ° Second ACP-EEC Lomé Convention ° Provisions concerning financial and technical cooperation ° Awarding and performance of public works contracts ° Compliance with conditions for Community funding ° Rights and obligations of Commission delegate

(Second ACP-EEC Lomé Convention of 31 October 1979, Arts 108(4)(f) and 123(3); Financial Regulation 81/215, Art. 61)

3. Non-contractual liability ° Damage caused by inadequate organization of the administration of an institution ° Burden of proof

(EEC Treaty, Art. 178 and Art. 215, second para.)

4. International agreements ° Second ACP-EEC Lomé Convention ° Provisions concerning financial and technical cooperation ° Awarding and performance of public works contracts ° Exceptional measures taken by the Chief Authorizing Officer of the European Development Fund ° Direct payment to contractor in the absence of a payment authorization issued by the National Authorizing Officer ° Obligation ° None

(Second ACP-EEC Lomé Convention of 31 October 1979; Financial Regulation 81/215, Art. 60)

5. International agreements ° Second ACP-EEC Lomé Convention ° Provisions concerning financial and technical cooperation ° Awarding and performance of public works contracts ° Exceptional measures taken by the Chief Authorizing Officer of the European Development Fund ° Termination of a contract in the absence of a National Authorizing Officer not in a position to exercise his authority ° Consequences

(Second ACP-EEC Lomé Convention of 31 October 1979; General Conditions for Works Contracts Financed by the European Development Fund, Art. 93)

Summary

1. In the context of the financial and technical cooperation established by the second ACP-EEC Convention, public works contracts financed by the European Development Fund are national contracts to which only the ACP State and the contractor are parties, and disputes concerning their performance must by determined by arbitration in accordance with Article 132 of that Convention. That does not, however, preclude the Court of First Instance from having jurisdiction under Article 178 and the second paragraph of Article 215 of the Treaty to rule on an action to establish non-contractual liability brought against the Commission and seeking reparation of the damage suffered by third parties as a result of acts attributable to the Commission, in particular those of its delegate in the performance of his duties.

2. In the context of the performance of public works contracts falling within the financial and technical cooperation established by the second ACP-EEC Convention, a Commission delegate is entitled to, and indeed must, refuse to endorse invoices submitted by contractors where he has substantial grounds for doubting that the conditions for Community funding have been met.

3. Where an applicant is seeking compensation for damage which it claims to have suffered as a result of the inadequate organization of an institution' s administration, it must at least identify a specific malfunction of the administration giving rise to the damage in question.

4. Although Article 60 of the Financial Regulation applicable to the Fifth European Development Fund allows the Commission' s Chief Authorizing Officer to take exceptional measures, particularly the payment of funds to contractors other than on the basis of an authorization issued by the National Authorizing Officer of the ACP State, direct payment to a contractor in the event of delays in clearance or authorization at national level is merely an option that is open to the Commission and is not an obligation.

5. The fact that, where a National Authorizing Officer is no longer in a position to exercise his authority, the Commission' s Chief Authorizing Officer acts in his place in order to terminate a contract financed by the European Development Fund but made between the national authorities and a contractor does not imply that the Commission is liable to pay the compensation provided for, in the event of termination by those authorities, by Article 93 of the General Conditions for Works Contracts Financed by the European Development Fund.