Judgment of the Court (Second Chamber) of 4 March 1982. - H.P. Gauff Ingenieure GmbH & Co. KG v Commission of the European Communities. - Public works contracts financed by the European Development Fund - Eligibility. - Case 182/80.



European Court reports 1982 Page 00799



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

PUBLIC CONTRACTS OF THE EUROPEAN COMMUNITIES - IMPLEMENTATION OF PROJECTS FINANCED BY THE EUROPEAN DEVELOPMENT FUND IN THE ACP COUNTRIES - INVITATIONS TO TENDER OR MUTUAL AGREEMENT CONTRACTS - ELIGIBILITY OF APPLICANTS - REFUSAL OF THE COMMISSION TO DECIDE THE ELIGIBILITY OF AN UNDERTAKING - APPLICATION FOR A DECLARATION THAT A MEASURE IS VOID AND FOR FAILURE TO ACT - INADMISSIBILITY

( EEC TREATY , ART . 173 , SECOND PARA ., AND ART . 175 ; ART . 25 OF PROTOCOL NO 2 TO THE CONVENTION OF LOME OF 2 FEBRUARY 1975 )

Summary

NEITHER ARTICLE 25 OF PROTOCOL NO 2 TO THE CONVENTION OF LOME OF 28 FEBRUARY 1975 ON THE APPLICATION OF FINANCIAL AND TECHNICAL COOPERATION CONCERNING THE AWARD OF CONTRACTS WITHIN THE FRAMEWORK OF THE EUROPEAN DEVELOPMENT FUND ( THE FUND ) NOR ANY OTHER RELEVANT PROVISION EMPOWERS ANY DEPARTMENT OF THE COMMISSION TO DEFINE THE LATTER ' S POSITION , BY WAY OF A DECISION OF GENERAL SCOPE , ON THE ELIGIBILITY OF AN INTERESTED PARTY FOR THE AWARD OF THE CONTRACTS IN QUESTION .

IN THE ABSENCE OF SUCH A POWER A LETTER FROM AN OFFICER OF THE COMMISSION STATING THAT IT WAS IMPOSSIBLE TO PROVIDE AN UNDERTAKING WITH THE ASSURANCES IN PRINCIPLE WHICH IT REQUESTED REGARDING ITS ADMISSION TO PARTICIPATE IN THE PROJECTS FINANCED BY THE FUND MAY NOT BE VALIDLY CONSIDERED AS A DECISION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY AND ACCORDINGLY CANNOT GIVE RISE TO A REVIEW BY MEANS OF THE PROCEEDINGS UNDER THAT PROVISION .

THE SAME CONSIDERATIONS ALSO ENTAIL THE FINDING THAT THERE IS NO FAILURE TO ACT , CAPABLE OF FORMING THE SUBJECT OF THE PROCEEDINGS PROVIDED FOR IN THE THIRD PARAGRAPH OF ARTICLE 175 OF THE EEC TREATY , WHICH MAY BE IMPUTED TO THE COMMISSION .

Parties

IN CASE 182/80

H . P . GAUFF INGENIEURE GMBH & CO . KG , 9 PASSAUER STRASSE , 8500 NUREMBERG , REPRESENTED BY GERD COELER , RECHTSANWALT , 3 PAULSTRASSE , 2000 HAMBURG ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DR JORN PIPKORN , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR ( I ) A DECLARATION THAT THE DEFENDANT ' S DECISION THAT THE APPLICANT IS NOT ELIGIBLE TO PARTICIPATE IN INVITATIONS TO TENDER OR MUTUAL AGREEMENT CONTRACTS CONCERNING PUBLIC SERVICE CONTRACTS FINANCED BY THE EUROPEAN DEVELOPMENT FUND IS VOID ; ( II ) IN THE ALTERNATIVE , A DECLARATION THAT THE DEFENDANT IS UNDER A DUTY TO INFORM THE APPLICANT WHETHER OR NOT IT IS ELIGIBLE FOR THE PURPOSES MENTIONED UNDER ( I ), AND ( III ) AN ORDER THAT THE DEFENDANT SHOULD PAY THE COSTS OF THE ACTION AND PAY TO THE APPLICANT THE SUM OF DM 1 BY WAY OF DAMAGES ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 25 AUGUST 1980 , H . P . GAUFF INGENIEURE GMBH & CO . KG , BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT THE DECISION , WHICH IN ITS VIEW IS CONTAINED IN THE LETTER OF 20 JUNE 1980 ADDRESSED TO IT BY THE COMMISSION AND ACCORDING TO WHICH IT IS NOT ELIGIBLE TO PARTICIPATE IN INVITATIONS TO TENDER OR MUTUAL AGREEMENT CONTRACTS CONCERNING PUBLIC SERVICE CONTRACTS FINANCED BY THE EUROPEAN DEVELOPMENT FUND ( HEREINAFTER REFERRED TO AS THE ' ' FUND ' ' ), IS VOID . IN THE ALTERNATIVE , ITS ACTION SEEKS TO OBTAIN , ON THE BASIS OF THE THIRD PARAGRAPH OF ARTICLE 175 OF THE EEC TREATY , A DECLARATION THAT THE DEFENDANT IS UNDER A DUTY TO INFORM THE APPLICANT WHETHER OR NOT IT IS ELIGIBLE FOR THE ABOVE-MENTIONED PURPOSES . FINALLY , THE APPLICANT REQUESTS , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , THAT THE COMMISSION BE ORDERED TO COMPENSATE IT FOR THE DAMAGE , AMOUNTING TO AT LEAST DM 1 , WHICH THE COMMISSION HAS ALLEGEDLY CAUSED TO IT .

2 AFTER THE APPLICANT HAD APPLIED ON A NUMBER OF OCCASIONS TO THE COMMISSION FOR ADMISSION TO THE PROCEDURES FOR THE AWARD OF CONTRACTS FOR THE IMPLEMENTATION OF PROJECTS FINANCED BY THE FUND IN THE ACP COUNTRIES FROM WHICH IT CONSIDERED ITSELF UNLAWFULLY EXCLUDED BY THE COMMISSION ON THE GROUND THAT ITS MANAGING DIRECTOR HAD BEEN INVOLVED IN A CASE OF CORRUPTING AN OFFICIAL OF THE COMMISSION , IT REQUESTED THE COMMISSION IN A LETTER DATED 21 APRIL 1980 TO INFORM IT WHETHER OR NOT THE COMMISSION CONSIDERED IT ELIGIBLE TO PARTICIPATE IN THE PROCEDURES IN QUESTION .

3 BY LETTER OF 20 JUNE 1980 THE DIRECTOR GENERAL OF THE LEGAL DEPARTMENT OF THE COMMISSION REFERRED TO THE ABSENCE OF ANY PROVISIONS COMPELLING OR PERMITTING THE DEPARTMENTS OF THE COMMISSION TO GIVE A STATEMENT OF VIEWS ON THE GENERAL QUESTION OF THE APPLICANT ' S ELIGIBILITY AND REFUSED TO ACCEDE TO ITS REQUEST .

4 THE APPLICANT MAINTAINS THAT THE LETTER OF 20 JUNE 1980 WHICH WAS ADDRESSED TO IT BY THE DEPARTMENTS OF THE COMMISSION IS UNLAWFUL ON THE GROUNDS OF INFRINGEMENT OF THE TREATY AND OF THE RULES OF LAW RELATING TO ITS APPLICATION , AS WELL AS OF MISUSE OF POWERS , IN SO FAR AS THE LETTER CONSTITUTES A REFUSAL TO CONFIRM THE APPLICANT ' S ELIGIBILITY FOR PARTICIPATING IN THE PROCEDURES BY WAY OF INVITATION TO TENDER IN RESPECT OF OR FOR THE CONCLUSION BY MUTUAL AGREEMENT OF PUBLIC SERVICE CONTRACTS FINANCED BY THE FUND .

5 THE APPLICANT EMPHASIZES THAT IT FULFILS ALL THE CONDITIONS PRESCRIBED BY THE RELEVANT PROVISIONS FOR ADMISSION TO PARTICIPATE IN PROCEDURES FOR THE AWARD OF THE CONTRACTS IN QUESTION AND THAT FURTHERMORE NONE OF THE OBSTACLES , OF WHICH AN EXHAUSTIVE LIST IS LAID DOWN BY THOSE PROVISIONS , PREVENTS ITS PARTICIPATION . IT FOLLOWS THAT , DESPITE THE DISCRETION WHICH THE COMMISSION ENJOYS WITHIN THE FRAMEWORK OF EACH INDIVIDUAL PROCEDURE IN DRAWING UP THE LIST OF CANDIDATES , THE SYSTEMATIC EXCLUSION OF THE APPLICANT AMOUNTS TO AN ARBITRARY AND UNLAWFUL BOYCOTT .

6 IN THIS CONNECTION IT OBSERVES THAT THE COMPLAINTS MADE AGAINST IT CONCERNING A CASE OF CORRUPTING AN OFFICIAL OF THE COMMISSION IN WHICH ITS MANAGING DIRECTOR WAS INVOLVED HAVE NEVER FORMED THE SUBJECT-MATTER OF AN INVESTIGATION BY THE PUBLIC PROSECUTOR ' S DEPARTMENT OR OF JUDICIAL PROCEEDINGS IN ACCORDANCE WITH GERMAN LAW .

7 THE APPLICANT ADDS THAT , SINCE THE DISCIPLINARY PROCEEDINGS BROUGHT BY THE COMMISSION AGAINST ITS OFFICIAL DID NOT CONCERN IT AND SINCE IT TOOK NO PART IN THESE PROCEEDINGS IT HAS NEVER , IN DISREGARD OF THE FUNDAMENTAL RIGHTS RECOGNIZED IN THE COMMUNITY , BEEN HEARD , IN CONFORMITY WITH THE REQUIREMENT , INHERENT IN THE RULE OF LAW , OF THE RIGHT TO A HEARING .

8 THE APPLICANT MAINTAINS , FURTHERMORE , THAT THE INCIDENT IN QUESTION IN ANY CASE CONCERNED ONLY THE ONE-MAN FIRM , H . P . GAUFF , WHICH CEASED TO EXIST AFTER 1 JANUARY 1970 WHEN IT MERGED WITH THE LIMITED PARTNERSHIP H . P . GAUFF GMBH & CO . KG .

9 THE APPLICANT CONSIDERS IN ADDITION THAT IF THE DEFENDANT ' S LETTER OF 20 JUNE 1980 IS CONSTRUED AS NOT CONTAINING A DECISION ON THE QUESTION OF THE APPLICANT ' S ELIGIBILITY , THEN THERE IS A FAILURE TO ACT ON THE PART OF THE COMMISSION , INASMUCH AS IT OMITTED TO PROVIDE A CLEARLY-DEFINED STATEMENT OF ITS POSITION ON THAT QUESTION . THE DUTY OF THE COMMISSION IN THAT RESPECT ARISES UNDER THE TREATY AND THE RULES RELATING TO ITS APPLICATION SINCE THE COMMISSION HAS NOT ONLY THE RIGHT BUT ALSO THE DUTY TO DEFINE ITS POSITION . ITS REFUSAL TO STATE ITS POSITION ON THE ELIGIBILITY OF THE APPLICANT CONSTITUTES MISUSE OF POWERS AND AN INFRINGEMENT OF THE TREATY .

10 FINALLY THE APPLICANT CLAIMS THAT THE UNLAWFUL CONDUCT OF THE DEFENDANT HAS CAUSED IT DAMAGE CONSISTING IN THE HARM DONE TO THE REPUTATION WHICH IT ENJOYS WITH THE NATIONAL AUTHORITIES AND IN PARTICULAR WITH THE AUTHORITIES OF THE ACP COUNTRIES WHICH ARE EMPOWERED TO AWARD THE CONTRACTS IN QUESTION WITHIN THE FRAMEWORK OF THE PROJECTS FINANCED BY OTHER AGENCIES .

11 THE COMMISSION CONTENDS THAT THE LETTER OF THE DIRECTOR OF ITS LEGAL DEPARTMENT OF 20 JUNE 1980 DOES NOT CONSTITUTE A DECISION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY , EITHER WITH REGARD TO THE POWERS OF ITS AUTHOR OR AS REGARDS ITS CONTENT OR THE FACTUAL CIRCUMSTANCES IN WHICH IT CAME TO BE WRITTEN . IT MAINTAINS THAT SINCE THAT LETTER DID NOT PRODUCE LEGAL EFFECTS WITH REGARD TO THE APPLICANT , THE LATTER HAS NO INTEREST WORTHY OF PROTECTION IN RAISING AN ABSTRACT QUESTION OF LAW UNRELATED TO A SPECIFIC PROCEDURE CONCERNING THE AWARD OF A CONTRACT ; ONLY THE IMPLEMENTATION OF SUCH A PROCEDURE ENABLES A DECISION OF THAT KIND TO BE ADOPTED .

12 FURTHERMORE , THE COMMISSION OBSERVES THAT , EVEN SUPPOSING THAT THAT LETTER CONTAINED A DECISION REFUSING TO ACCEPT THE APPLICANT AS ELIGIBLE , THAT DECISION WOULD BE WELL FOUNDED IN LAW AS BEING TAKEN IN THE EXERCISE OF A DISCRETION IN THE DRAWING UP OF THE LIST OF SELECTED CANDIDATES ON THE BASIS OF THE CRITERIA CONCERNING THE STANDING AND ABILITY OF THE CANDIDATES IN ACCORDANCE WITH ARTICLE 25 OF PROTOCOL NO 2 TO THE CONVENTION WITH THE ACP STATES .

13 WITH REGARD TO THE COMPLAINT THAT IT FAILED TO ACT THE COMMISSION CONTENDS ESSENTIALLY THAT IT IS NOT OBLIGED , BY VIRTUE OF ANY POWERS CONFERRED UPON IT BY A PROVISION OF COMMUNITY LAW OR UNDER A BINDING AGREEMENT CONCLUDED UNDER THE CONDITIONS LAID DOWN IN ARTICLE 228 OF THE TREATY , TO ADOPT A DECISION OF PRINCIPLE ON THE APPLICANT ' S ELIGIBILITY . SUCH A DECISION , WHICH WOULD HAVE NO EFFECTS SO FAR AS ARTICLE 175 OF THE EEC TREATY IS CONCERNED , WOULD MERELY PRE-DETERMINE MANY DECISIONS WHICH THEMSELVES PRODUCE DIRECT LEGAL EFFECTS .

14 WITH REGARD TO THE CLAIM FOR DAMAGES THE COMMISSION OBSERVES THAT IT IS NOT BASED ON AN ADEQUATE IDENTIFICATION OF THE WRONGFUL ACT OR OMISSION WHICH CAUSED THE ALLEGED DAMAGE AND THAT IT ACCORDINGLY DOES NOT SATISFY THE CONDITIONS LAID DOWN IN ARTICLE 38 ( C ) OF THE RULES OF PROCEDURE OF THE COURT . THERE IS ACCORDINGLY NO NEED TO CONSIDER THE OTHER CONDITIONS WHICH ARE NECESSARY TO ESTABLISH THE APPLICANT ' S RIGHT OF COMPENSATION FOR DAMAGE .

THE APPLICATION FOR A DECLARATION THAT THE DECISION IS VOID AND THE APPLICATION ON THE GROUND OF FAILURE TO ACT

15 ARTICLE 25 OF PROTOCOL NO 2 TO THE CONVENTION OF LOME OF 28 FEBRUARY 1975 ON THE APPLICATION OF FINANCIAL AND TECHNICAL COOPERATION ( OFFICIAL JOURNAL L 25 OF 31 JANUARY 1976 , P . 104 ) CONCERNING THE AWARD OF CONTRACTS WITHIN THE FRAMEWORK OF THE EUROPEAN DEVELOPMENT FUND PROVIDES :

' ' ( 1 ) FOR EACH OPERATION OF TECHNICAL COOPERATION WHICH WILL INVOLVE A MUTUAL AGREEMENT PROCEDURE , THE COMMISSION SHALL COMPILE A LIST OF SELECTED CANDIDATES FROM MEMBER STATES OR ACP STATES , SELECTED ACCORDING TO CRITERIA GUARANTEEING THEIR QUALIFICATIONS , EXPERIENCE AND INDEPENDENCE AND TAKING INTO ACCOUNT THEIR AVAILABILITY FOR THE PROPOSED UNDERTAKING .

. . .

( 2)WHEN COMPETITIVE TENDERING IS RESORTED TO , THE LIST OF SELECTED CANDIDATES SHALL BE DRAWN UP IN CLOSE COLLABORATION WITH THE COMMISSION AND THE ACP STATE CONCERNED ON THE BASIS OF THE CRITERIA SET OUT IN PARAGRAPH ( 1 ) ' ' .

16 IT MUST BE EMPHASIZED THAT NEITHER THAT PROVISION NOR ANY OTHER RELEVANT PROVISION EMPOWERS ANY DEPARTMENT OF THE DEFENDANT INSTITUTION TO DEFINE THE LATTER ' S POSITION , BY WAY OF A DECISION OF GENERAL SCOPE , ON THE ELIGIBILITY OF AN INTERESTED PARTY FOR THE AWARD OF THE CONTRACTS IN QUESTION .

17 IN THE ABSENCE OF SUCH A POWER THE DIRECTOR GENERAL OF THE LEGAL DEPARTMENT OF THE COMMISSION COULD NOT ADOPT A DECISION HAVING THE PURPORT FOR WHICH THE APPLICANT CONTENDS . FURTHERMORE THE DIRECTOR GENERAL , IN HIS LETTER OF 20 JUNE 1980 , MERELY REFERRED TO THE RELEVANT PROVISIONS IN ORDER TO CONCLUDE THAT ' ' THE CHOICE OF CANDIDATES WAS EFFECTED . . . CASE BY CASE ' ' BY TAKING THE CIRCUMSTANCES INTO ACCOUNT AND THAT IT WAS ACCORDINGLY IMPOSSIBLE TO PROVIDE THE APPLICANT WITH THE ASSURANCES IN PRINCIPLE WHICH IT REQUESTED REGARDING ITS ADMISSION TO PARTICIPATE IN THE PROJECTS FINANCED BY THE FUND .

18 IN THE ABSENCE OF THE EXERCISE , UPON THE CONCLUSION OF AN INTERNAL PROCEDURE LAID DOWN BY LAW , OF A POWER PROVIDED FOR BY LAW WHICH IS INTENDED TO PRODUCE LEGAL EFFECTS OF SUCH A NATURE AS TO AFFECT ADVERSELY THE INTERESTS OF THE APPLICANT BY MODIFYING ITS LEGAL POSITION , THE LETTER OF 20 JUNE 1980 MAY NOT BE VALIDLY CONSIDERED AS A DECISION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY AND ACCORDINGLY CANNOT GIVE RISE TO A REVIEW BY MEANS OF THE PROCEEDINGS UNDER THAT PROVISION .

19 THE FOREGOING CONSIDERATIONS CONCERNING THE REASONS WHICH PREVENT THE LETTER OF THE COMMISSION OF 20 JUNE 1980 FROM BEING CONSIDERED AS A DECISION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 ALSO ENTAIL THE FINDING THAT THERE IS NO FAILURE TO ACT , CAPABLE OF FORMING THE SUBJECT OF THE PROCEEDINGS PROVIDED FOR IN THE THIRD PARAGRAPH OF ARTICLE 175 OF THE EEC TREATY , WHICH MAY BE IMPUTED TO THE COMMISSION .

THE CLAIM FOR DAMAGES

20 IT FOLLOWS FROM THE FOREGOING THAT THERE IS NO UNLAWFUL ACT OR OMISSION OF AN ADMINISTRATIVE NATURE FOR WHICH THE COMMISSION MAY BE HELD LIABLE , EVEN SUPPOSING THAT THE APPLICANT HAS SUFFERED DAMAGE AND THAT A CONNECTION CAN BE ESTABLISHED BETWEEN SUCH DAMAGE AND THE CONDUCT OF THE COMMISSION .

21 THE APPLICATION MUST THEREFORE BE DISMISSED .

Decision on costs

COSTS

22 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS .