Judgment of the Court (Fourth Chamber) of 10 July 1985. - CMC Cooperativa muratori e cementisti and others v Commission of the European Communities. - European Development Fund - Amarti River diversion project. - Case 118/83.



European Court reports 1985 Page 02325



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . INTERNATIONAL AGREEMENTS - SECOND LOME ACP-EEC CONVENTION - PROVISIONS ON FINANCIAL AND TECHNICAL COOPERATION - PROCEDURE FOR PLACING PUBLIC WORKS CONTRACTS - RESPECTIVE ROLES OF THE ACP STATE AND THE COMMISSION - POWER OF THE ACP STATE TO CONCLUDE CONTRACTS - ACT OR OMISSION OF THE COMMISSION IN RESPECT OF WHICH AN ACTION FOR ANNULMENT OR FOR FAILURE TO ACT MAY BE BROUGHT BY A TENDERER - NONE - ALLEGATION OF LIABILITY ON THE PART OF COMMUNITY-ADMISSIBILITY

( EEC TREATY , ART . 173 , SECOND PARA ., ART . 175 , THIRD PARA ., ART . 178 AND ART . 215 , SECOND PARA ; SECOND ACP-EEC CONVENTION OF 31 OCTOBER 1979 , ARTS 120 TO 123 )

2 . INTERNATIONAL AGREEMENTS - SECOND LOME ACP-EEC CONVENTION - PROVISIONS ON FINANCIAL AND TECHNICAL COOPERATION - PROCEDURE FOR PLACING PUBLIC WORKS CONTRACTS - RESPECTIVE ROLES OF THE ACP STATE AND THE COMMISSION - AWARD OF CONTRACT SUBJECT TO COMMISSION APPROVAL - OBLIGATION OF COMMISSION TO ENSURE JUDICIOUS USE OF EDF FUNDS .

( SECOND ACP-EEC CONVENTION OF 31 OCTOBER 1979 , ARTS 121 AND 123 ).

Summary

1 . IN THE FRAMEWORK OF THE FINANCIAL AND TECHNICAL COOPERATION PROVIDED FOR BY THE SECOND ACP-EEC CONVENTION THE PROCEDURE FOR PLACING PUBLIC WORKS CONTRACTS INVOLVES A DIVISION OF POWERS BETWEEN THE COMMISSION AND THE AUTHORITIES OF THE ACP STATE CONCERNED . WHEREAS THE COMMISSION ADOPTS THE FINANCING DECISIONS ON BEHALF OF THE COMMUNITY , THE AUTHORITIES OF THE ACP STATE ARE RESPONSIBLE FOR PREPARING , NEGOTIATING AND CONCLUDING CONTRACTS . IT FOLLOWS THAT THERE CAN BE NO ACT OR OMISSION ON THE PART OF THE COMMISSION IN RESPECT OF WHICH TENDERERS MAY BRING AN ACTION FOR ANNULMENT OR FOR FAILURE TO ACT , UNDER ARTICLE 173 , SECOND PARAGRAPH , OR ARTICLE 175 , THIRD PARAGRAPH , OF THE EEC TREATY . THEY MAY HOWEVER BRING AN ACTION FOR DAMAGES , SINCE IT WOULD BE WRONG TO DISMISS THE POSSIBILITY THAT ACTS OR CONDUCT OF THE COMMISSION OR ITS OFFICIALS AND AGENTS IN CONNECTION WITH PROJECTS FINANCED BY THE EUROPEAN DEVELOPMENT FUND MIGHT CAUSE DAMAGE TO THIRD PARTIES .

2 . HAVING REGARD TO THE RESPONSIBILITIES CONFERRED ON IT IN THE INTEREST OF THE COMMUNITY BY ARTICLES 121 AND 123 OF THE SECOND ACP-EEC CONVENTION , THE COMMISSION IS UNDER A DUTY , IN ORDER TO ENSURE THE ECONOMICAL ADMINISTRATION OF THE RESOURCES OF THE EUROPEAN DEVELOPMENT FUND , TO MAKE CERTAIN , BEFORE APPROVING THE AWARD OF A CONTRACT FINANCED BY THAT FUND , THAT THE TENDER ACCEPTED IS THE LOWEST , IS ECONOMICALLY THE MOST ADVANTAGEOUS AND DOES NOT EXCEED THE SUM EARMARKED FOR THE CONTRACT .

Parties

IN CASE 118/83

CMC COOPERATIVA MURATORI E CEMENTISTI , RAVENNA ( ITALY ),

CRC COOPERATIVA REGGIANA COSTRUZIONI , REGGIO EMILIA ( ITALY ),

CMB COOPERATIVA MURATORI E BRACCIANTI , CARPI , MODENA ( ITALY ),

LIMITED LIABILITY CO-OPERATIVE COMPANIES GOVERNED BY ITALIAN LAW , REPRESENTED BY PROFESSOR GIORGIO BERNINI , OF THE BOLOGNA BAR , AND STANLEY A . CROSSICK , SOLICITOR OF THE SUPREME COURT OF ENGLAND AND WALES , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B RUE PHILIPPE II ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ANTHONY MCCLELLAN , AND DANIEL JACOB , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES KREMLIS , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION PRIMARILY FOR A DECLARATION THAT THE COMMISSION DECISION DEPRIVING THE APPLICANTS OF THE AWARD OF A PUBLIC WORKS CONTRACT FINANCED BY THE FIFTH EUROPEAN DEVELOPMENT FUND IS VOID , AND , SECONDARILY , FOR A DECLARATION THAT THE COMMISSION ILLEGALLY FAILED TO ACT , AND FOR AN ORDER THAT THE COMMISSION SHOULD COMPENSATE THE APPLICANTS FOR THE DAMAGE CAUSED TO THEM BY ITS DECISION , ITS FAILURE TO ACT OR ITS ILLEGAL CONDUCT .

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 28 JUNE 1983 COOPERATIVA MURATORI E CEMENTISTI , OF RAVENNA , ITALY , COOPERATIVA REGGIANA COSTRUZIONI , OF REGGIO EMILIA , ITALY , AND COOPERATIVA MURATORI E BRACCIANTI , OF CARPI , MODENA , ITALY , ACTING AS A CONSORTIUM , BROUGHT AN ACTION UNDER ARTICLES 173 , 175 AND 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY FOR THE ANNULMENT OF A COMMISSION DECISION THE EFFECT OF WHICH WAS TO DEPRIVE THE APPLICANTS OF THE AWARD OF A CONTRACT FOR THE CONSTRUCTION OF A HYDRO-ELECTRIC DAM IN ETHIOPIA , THE AMARTI RIVER DIVERSION PROJECT , FINANCED BY THE EUROPEAN DEVELOPMENT FUND AND CARRIED OUT UNDER THE PROVISIONS ON FINANCIAL AND TECHNICAL CO-OPERATION OF THE SECOND ACP-EEC CONVENTION , SIGNED AT LOME ON 31 OCTOBER 1979 AND APPROVED BY COUNCIL REGULATION ( EEC ) NO 3225/80 OF 25 NOVEMBER 1980 ( OFFICIAL JOURNAL 1980 , L 347 , P . 1 ; HEREINAFTER REFERRED TO AS ' THE CONVENTION ' ). IN THE ALTERNATIVE , THE APPLICANTS SEEK A DECLARATION THAT THE COMMISSION FAILED TO ACT , SHOULD IT BE FOUND THAT IT FAILED TO EXERCISE ITS POWERS IN THE CONTEXT OF THE TENDER PROCEDURE , GOVERNED BY TITLE VII OF THE CONVENTION . IN THE EVENT THAT IT IS FOUND TO BE NO LONGER POSSIBLE TO AWARD THE CONTRACT TO THE APPLICANTS , THEY CLAIM DAMAGES FOR THE LOSS THEREBY CAUSED TO THEM .

2 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT IN DECEMBER 1981 THE ETHIOPIAN GOVERNMENT , ACTING THROUGH THE INTERMEDIARY OF THE ETHIOPIAN ELECTRIC LIGHT AND POWER AUTHORITY ( HEREINAFTER REFERRED TO AS ' EELPA ' ), AS ' EMPLOYER ' , ISSUED AN INVITATION TO TENDER IN RESPECT OF CONSTRUCTION WORK ON THE AMARTI RIVER DIVERSION , CONSISTING OF THE DIVERSION OF THAT RIVER , ON THE CENTRAL PLATEAU ABOUT 190 KILOMETRES NORTH-WEST OF ADDIS ABABA , TOWARDS THE EXISTING FINCHAA RESERVOIR . THE INVITATION TO TENDER , BASED ON DOCUMENTS PUBLISHED UNDER THE TITLE ' NOTES ON DOCUMENTS FOR CIVIL ENGINEERING CONTRACTS ' BY THE INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS ( FIDIC ), WHOSE HEADQUARTERS IS IN LAUSANNE , WAS PUBLISHED UNDER NO 1824 IN SUPPLEMENT TO THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES , S 132 OF 14 JULY 1982 , PAGE 3 . THE WORKS ARE FINANCED BY THE EUROPEAN DEVELOPMENT FUND AS PART OF ITS ACTION TO PROMOTE ECONOMIC DEVELOPMENT .

3 UNDER THE CONDITIONS OF TENDER , TENDERERS WERE REQUIRED TO DEMONSTRATE THEIR TECHNICAL EXPERIENCE AND COMPETENCE TO UNDERTAKE THE WORKS , THE MAJOR FACTOR BEING SUCCESSFUL EXECUTION , IN THE CAPACITY OF PRIME CONTRACTOR AND IN RECENT YEARS , OF A PROJECT OR PROJECTS CONTAINING ELEMENTS SIMILAR IN NATURE AND AT LEAST EQUAL IN SCALE TO THOSE SPECIFIED IN THE PROJECT ( CLAUSE IT-1 , 4 ( C )). THE TENDERERS WERE ALSO REQUIRED TO DEMONSTRATE THEIR CURRENT FINANCIAL CAPABILITY ( CLAUSE IT-1 , 4 ( D )).

4 THE QUALIFICATIONS OF THE TENDERERS WERE TO BE EXAMINED BY A TENDER COMMITTEE APPOINTED BY THE EMPLOYER ; THAT COMMITTEE WAS ASSISTED BY THE EEC DELEGATE AT ADDIS ABABA AND BY A CONSULTING ENGINEER ( CLAUSE IT-1 , 4 , THIRD PARAGRAPH ).

5 WITH REGARD TO THE AWARD OF THE CONTRACT IT WAS STATED IN THE CONDITIONS OF TENDER THAT THE EMPLOYER DID NOT BIND ITSELF TO AWARD THE CONTRACT TO THE LOWEST TENDERER , BUT WOULD TAKE INTO CAREFUL CONSIDERATION THE WHOLE OF THE INFORMATION GIVEN IN THE TENDER AND IN ITS APPENDICES . IT WAS ADDED THAT THE TENDERER CHOSEN WOULD BE INFORMED THAT HIS OFFER HAS BEEN ACCEPTED AND INVITED TO SEND TO ADDIS ABABA A REPRESENTATIVE WITH A FULL POWER OF ATTORNEY FOR THE PURPOSE OF SIGNING THE CONTRACT ( CLAUSE IT-11 ).

6 THE FINAL DATE SET FOR THE SUBMISSION OF TENDERS WAS 5 NOVEMBER 1982 ( SEE THE CORRIGENDUM TO THE INVITATION TO TENDER PUBLISHED IN OFFICIAL JOURNAL , S 193 OF 6 OCTOBER 1982 , P.3 ), AND ON THAT DATE EELPA HAD RECEIVED THREE OFFERS , SUBMITTED BY THE ITALIAN CONSORTIUM , BY RUSH & TOMPKINS BV , A COMPANY INCORPORATED UNDER NETHERLANDS LAW , AND BY BOSKALIS WESTMINSTER-BARESEL , A COMPANY INCORPORATED UNDER ENGLISH LAW .

7 IT SHOULD BE NOTED THAT THE TENDER OF RUSH & TOMPKINS BV WAS SUBMITTED ONLY IN THE FORM OF A TELEX COMMUNICATION , SINCE THE DESPATCH OF THE TENDER DOCUMENTS TO ADDIS ABABA HAD BEEN DELAYED BECAUSE OF DIFFICULTIES BEYOND THE CONTROL OF THE TENDERER . THE ETHIOPIAN AUTHORITIES ACCEPTED THAT THE CIRCUMSTANCES AMOUNTED TO A CASE OF FORCE MAJEURE AND THAT THE TENDER COULD THEREFORE BE CONSIDERED .

8 WHEN THE TENDERS WERE OPENED ON 8 NOVEMBER 1982 THE FOLLOWING TENDERS ( EXPRESSED IN MILLIONS OF ECU ) WERE ESTABLISHED :

1 ) RUSH & TOMPKINS BV : 24.3

2 ) ITALIAN CONSORTIUM : 26.7

3 ) BOSKALIS WESTMINSTER-BARESEL : 28.2

9 THE TENDER DOCUMENTS WERE THEN EXAMINED BY THE ETHIOPIAN AUTHORITIES , IN CONSULTATION WITH KAMPSAX , A DANISH FIRM OF CONSULTING ENGINEERS . IT SHOULD BE NOTED THAT KAMPSAX WAS CHOSEN BY THE ETHIOPIAN AUTHORITIES , ALTHOUGH ITS FEES WERE TO BE PAID BY THE EUROPEAN DEVELOPMENT FUND . THE COMMISSION HAS EMPHASIZED THAT ALTHOUGH IT ENTERED INTO CONTACT WITH KAMPSAX THAT FIRM ' S TASK WAS TO ADVISE THE ETHIOPIAN GOVERNMENT AND ITS SUCCESSIVE ASSESSMENTS OF THE TENDERS COULD NOT BIND THE COMMISSION .

10 ON 24 FEBRUARY 1983 THE TENDER COMMITTEE PROVIDED FOR IN THE CONDITIONS OF TENDER MET IN ADDIS ABABA , IN THE PRESENCE OF THE COMMISSION ' S LOCAL DELEGATE , TO EXAMINE THE REPORT OF KAMPSAX ON THE TENDERS SUBMITTED . WITH THE AGREEMENT OF THE ETHIOPIAN AUTHORITIES THE MINUTES OF THAT MEETING WERE PRODUCED TO THE COURT . IT APPEARS FROM THOSE MINUTES THAT THE MEMBERS OF THE COMMITTEE HAD RECEIVED IN ADVANCE A DRAFT REPORT AND A FINAL REPORT FROM KAMPSAX , AND THAT AT THE LAST MOMENT THE CONSULTANTS HAD MADE A FURTHER SLIGHT MODIFICATION TO THEIR CONCLUSIONS , AFTER CONSIDERING ADDITIONAL DOCUMENTS SUBMITTED BY RUSH & TOMPKINS BV . THE MINUTES SHOW THAT THE COMMITTEE WAS UNANIMOUS IN REJECTING THE TENDER OF RUSH & TOMPKINS BV , ALTHOUGH IT WAS THE MOST FAVOURABLE , ON THE GROUND OF A LACK OF TECHNICAL AND FINANCIAL CAPABILITY . THE COMMITTEE THEREFORE RECOMMENDED THAT THE SECOND TENDERER , THE ITALIAN CONSORTIUM , BE INVITED TO ATTEND IN ORDER TO NEGOTIATE THE CONTRACT . THE COMMITTEE ALSO DECIDED THAT SHOULD THE NEGOTIATIONS WITH THE ITALIAN CONSORTIUM FAIL , BOSKALIS WESTMINSTER-BARESEL SHOULD BE CONSIDERED THE SECOND QUALIFIED TENDERER .

11 ON 28 FEBRUARY 1983 THE FINAL REPORT OF KAMPSAX WAS TRANSMITTED BY THE ETHIOPIAN AUTHORITIES TO THE COMMISSION , IN THE PERSON OF THE CHIEF AUTHORIZING OFFICER OF THE EUROPEAN DEVELOPMENT FUND . IMMEDIATELY AFTERWARDS , ON 3 MARCH , EELPA SENT A TELEX COMMUNICATION TO THE ITALIAN CONSORTIUM INVITING IT TO ATTEND IN ADDIS ABABA ON 14 MARCH TO BEGIN NEGOTIATIONS FOR THE CONCLUSION OF THE CONTRACT . WHEN , HOWEVER , THE REPRESENTATIVES OF THE CONSORTIUM ARRIVED AT THE HEAD OFFICE OF EELPA ON THE DATE INDICATED , THEY WERE NOT ABLE TO MEET EELPA OFFICIALS . THE FOLLOWING DAY , 15 MARCH 1983 , THEY WERE INFORMED BY THE ETHIOPIAN AUTHORITIES THAT THE NEGOTIATIONS COULD NOT TAKE PLACE SINCE THE COMMISSION HAD REQUESTED THAT NEGOTIATIONS BE OPENED WITH RUSH & TOMPKINS BV .

12 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT WHEN THE COMMISSION RECEIVED THE REPORT OF THE TENDER COMMITTEE IT DISAGREED WITH THE REJECTION OF THE LOWEST OFFER AND ASKED THE ETHIOPIAN AUTHORITIES AND , THROUGH THEM , KAMPSAX TO RECONSIDER THE QUESTION OF THE LACK OF TECHNICAL AND FINANCIAL QUALIFICATIONS OF RUSH & TOMPKINS BV . IN THE COURSE OF THAT REVIEW DIRECT CONTACTS TOOK PLACE BETWEEN THE COMMISSION AND KAMPSAX . DURING THE SAME PERIOD THE ITALIAN CONSORTIUM MADE REPRESENTATIONS TO THE COMMISSION ON SEVERAL OCCASIONS , AND WAS INFORMED ORALLY OF THE REASONS FOR THE COMMISSION ' S ACTION .

13 THE COMMISSION STATES THAT IN THE COURSE OF THOSE EFFORTS TO CLARIFY THE MATTER IT ESTABLISHED THAT RUSH & TOMPKINS BV WAS IN FACT A SUBSIDIARY OF AN ENGLISH GROUP , RUSH & TOMPKINS GROUP PLC , WHICH , TAKEN AS A GROUP , APPEARED TO IT TO HAVE THE TECHNICAL AND FINANCIAL CAPABILITIES NECESSARY FOR A PROJECT OF THIS SIZE . IN ITS SUCCESSIVE STATEMENTS KAMPSAX GRADUALLY CHANGED ITS VIEW AND FINALLY AGREED THAT , TAKING INTO ACCOUNT THE GUARANTEES PROVIDED BY ITS RELATIONSHIP WITH THE RUSH & TOMPKINS GROUP , MANIFESTED BY AN EXPRESS AND UNCONDITIONAL WRITTEN GUARANTEE ( CORPORATE GUARANTEE ) DATED 22 APRIL 1983 AND REPEATED IN IDENTICAL TERMS ON 21 JUNE 1983 , RUSH & TOMPKINS BV DID IN FACT POSSESS THE TECHNICAL AND FINANCIAL CAPABILITIES REQUIRED FOR THE COMPLETION OF THE PROJECT .

14 AT FIRST , THE ETHIOPIAN AUTHORITIES FOUND IT DIFFICULT TO AGREE WITH THAT ASSESSMENT , AS IS INDICATED BY A TELEX COMMUNICATION OF 25 APRIL 1983 SENT TO THE ITALIAN CONSORTIUM IN WHICH THEY STATED THAT PRESSURE HAD BEEN BROUGHT TO BEAR ON THEM BY THE COMMISSION .

15 ON 6 JUNE 1983 KAMPSAX SUBMITTED A FINAL REPORT RECOMMENDING , THIS TIME , THAT THE CONTRACT SHOULD BE AWARDED TO RUSH & TOMPKINS BV , SUPPORTED BY RUSH & TOMPKINS GROUP PLC . THAT REPORT WAS IMMEDIATELY ACCEPTED BY THE ETHIOPIAN AUTHORITIES , IN THE PERSON OF THE NATIONAL AUTHORIZING OFFICER . ON 10 JUNE 1983 THE CHIEF AUTHORIZING OFFICER OF THE EUROPEAN DEVELOPMENT FUND GAVE HIS AGREEMENT , AND THE CONTRACT BETWEEN THE ETHIOPIAN AUTHORITIES AND RUSH & TOMPKINS BV WAS SIGNED ON 6 JULY 1983 AND ENDORSED BY THE COMMISSION ' S DELEGATE ON THE AUTHORITY OF THE CHIEF AUTHORIZING OFFICER .

16 IN A TELEX COMMUNICATION OF 22 JUNE 1983 EELPA INFORMED THE ITALIAN CONSORTIUM THAT AS A RESULT OF DISCUSSIONS WITH KAMPSAX AND THE COMMISSION IT WAS NOW SATISFIED THAT THE LOWEST TENDERER , RUSH & TOMPKINS BV , HAD ALL THE QUALIFICATIONS REQUIRED IN ORDER TO UNDERTAKE THE AMARTI PROJECT . IT THEREFORE ASKED THE ITALIAN CONSORTIUM NOT TO PURSUE THE MATTER .

17 ON 24 JUNE 1983 THE ITALIAN CONSORTIUM BROUGHT THIS ACTION , TOGETHER WITH AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES . THAT APPLICATION RESULTED IN AN ORDER OF 5 AUGUST 1983 WHICH EXPRESSED DOUBTS WITH REGARD TO THE REGULARITY OF THE PROCEDURE BUT DID NOT GRANT THE MEASURES REQUESTED (( 1983 ) ECR 2583 ).

18 TWO ISSUES OF A PRELIMINARY NATURE WERE RAISED BY THE PARTIES DURING THE PROCEEDINGS :

IN ITS APPLICATION THE APPLICANT CONSORTIUM REQUESTED THE PRODUCTION BY THE COMMISSION OF A NUMBER OF DOCUMENTS . SINCE THE COMMISSION DID NOT ACCEDE TO THAT REQUEST , EXCEPT IN REGARD TO CERTAIN DOCUMENTS REFERRED TO BELOW , THAT CLAIM WAS REPEATED DURING THE PROCEEDINGS , IN THE FORM OF AN INTERLOCUTORY APPLICATION UNDER ARTICLE 91 OF THE RULES OF PROCEDURE , THEN IN ITS REPLY AND AT THE HEARING ;

FOR ITS PART , THE COMMISSION RAISED AN OBJECTION OF INADMISSIBILITY WITH REGARD BOTH TO THE ACTION FOR ANNULMENT AND THE ACTION FOR FAILURE TO ACT AND TO THE ACTION FOR DAMAGES AND THE INTERLOCUTORY APPLICATION FOR THE PRODUCTION OF DOCUMENTS .

19 THOSE ISSUES MUST BE RESOLVED BEFORE THE SUBSTANCE OF THE CASE IS DEALT WITH .

THE PRODUCTION OF DOCUMENTS

20 IT APPEARS FROM THE CLAIMS OF THE APPLICANTS THAT THEY WISH TO HAVE ACCESS TO THREE SETS OF DOCUMENTS WHICH MAY CONTAIN INFORMATION RELEVANT TO THEIR ACTION : THE TENDER DOCUMENTS OF RUSH & TOMPKINS , WHICH ARE IN THE POSSESSION OF THE ETHIOPIAN AUTHORITIES ; THE REPORTS DRAWN UP BY KAMPSAX FOR THOSE AUTHORITIES ; FINALLY , THE COMMUNICATIONS BETWEEN THE COMMISSION ON THE ONE HAND AND THE ETHIOPIAN AUTHORITIES AND KAMPSAX ON THE OTHER .

21 DURING THE PROCEEDINGS THE COMMISSION VOLUNTARILY PRODUCED THE FOLLOWING DOCUMENTS , HAVING FIRST OBTAINED THE AGREEMENT OF THE ETHIOPIAN AUTHORITIES OR OF RUSH & TOMPKINS BV AS APPROPRIATE :

A SUMMARY OF THE CONTENTS OF APPENDIX A CONCERNING THE QUALIFICATIONS OF THE TENDERER , ANNEXED TO THE TENDER OF RUSH & TOMPKINS BV ;

A WRITTEN GUARANTEE OF 22 APRIL 1983 PROVIDED TO EELPA BY THE RUSH & TOMPKINS GROUP PLC , IN FAVOUR OF RUSH & TOMPKINS BV , REPLACED BY THAT OF 21 JUNE 1983 ;

THE MINUTES OF THE MEETING OF THE TENDER COMMITTEE AT ADDIS ABABA ON 24 FEBRUARY 1983 .

THE AUTHENTICITY OF THOSE DOCUMENTS IS NOT DISPUTED .

22 ON 23 DECEMBER 1983 THE APPLICANTS MADE AN APPLICATION UNDER ARTICLE 91 ( 1 ) OF THE RULES OF PROCEDURE SEEKING AN ORDER FOR THE PRODUCTION OF ALL THE OTHER DOCUMENTS REQUESTED BY THEM IN THEIR MAIN APPLICATION .

23 IN ITS OBSERVATIONS SUBMITTED PURSUANT TO ARTICLE 91 ( 2 ) THE COMMISSION ARGUES THAT A CLAIM FOR THE PRODUCTION OF DOCUMENTS DOES NOT CONSTITUTE A ' PRELIMINARY OBJECTION ' OR A ' PROCEDURAL ISSUE ' WITHIN THE MEANING OF THE PROVISION REFERRED TO . SUCH A CLAIM OVERLAPS WITH THE NORMAL EXAMINATION OF THE CASE AS PROVIDED FOR IN ARTICLE 45 ET SEQ . OF THE RULES OF PROCEDURE AND IS INADMISSIBLE .

24 WITH REGARD TO THE SUBSTANCE OF THE REQUESTS MADE , THE COMMISSION STATES THAT THE APPLICANTS ARE SEEKING TO BECOME PRIVY TO ALL THE DOCUMENTS IN THE COMMISSION ' S POSSESSION AND ARE THUS ATTEMPTING TO ALTER THE PRINCIPLES REGARDING THE BURDEN OF PROOF , INASMUCH AS IT IS FOR EACH PARTY TO PROVE HIS ALLEGATIONS WITHOUT CLAIMING A RIGHT TO ' FISH ' FOR ARGUMENTS IN HIS ADVERSARY ' S FILES . THE COMMISSION ALSO DRAWS ATTENTION TO THE CONFIDENTIAL NATURE OF THE DOCUMENTS REQUESTED BY THE APPLICANTS INASMUCH AS THEY RELATE TO A TENDER PROCEDURE FOR WHICH THE ACP STATE CONCERNED WAS RESPONSIBLE AND TO COMMUNICATIONS BETWEEN THE COMMISSION AND ITS LOCAL REPRESENTATIVE ON THE ONE HAND AND THE AUTHORITIES OF A NON-MEMBER COUNTRY ON THE OTHER .

25 BY ORDER OF 29 FEBRUARY 1984 THE COURT DECIDED TO RESERVE UNTIL FINAL JUDGMENT ITS DECISION ON THE PROCEDURAL ISSUE . DURING ITS EXAMINATION OF THE CASE IT DID NOT REQUIRE THE PRODUCTION OF DOCUMENTS OTHER THAN THOSE MENTIONED ABOVE WHICH WERE PROVIDED TO IT BY THE COMMISSION . IN THE COURSE OF THAT EXAMINATION IT BECAME APPARENT THAT ONCE THE COMMISSION HAD SUBMITTED CERTAIN DOCUMENTS VOLUNTARILY THE COURT WAS IN POSSESSION OF ALL THE INFORMATION NECESSARY FOR THE RESOLUTION OF THE CASE , AS WILL BECOME APPARENT FROM THE CONSIDERATIONS SET OUT BELOW REGARDING THE ADMISSIBILITY AND THE SUBSTANCE OF THE APPLICATION . THE REPEATED CLAIMS OF THE APPLICANTS MUST THEREFORE BE DISMISSED AS IRRELEVANT , AND IT IS NOT NECESSARY TO CONSIDER THE QUESTION WHETHER THE DOCUMENTS TO WHICH THEY WISH TO HAVE ACCESS ARE CONFIDENTIAL IN NATURE .

ADMISSIBILITY

26 THE COMMISSION CHALLENGES THE JURISDICTION OF THE COURT TO HEAR ACTIONS REGARDING INVITATIONS TO TENDER IN EUROPEAN DEVELOPMENT FUND PROJECTS . ACCORDING TO THE COMMISSION , IT IS THE ACP STATE CONCERNED WHICH IS RESPONSIBLE FOR PREPARING , NEGOTIATING AND CONCLUDING CONTRACTS IN RELATION TO A PARTICULAR PROJECT . IT FOLLOWS THAT THE DIRECT INTERLOCUTOR OF THE TENDERERS IS THE ACP STATE AND NOT THE COMMISSION . IT IS THAT STATE WHICH TAKES THE VARIOUS DECISIONS REQUIRED IN THE COURSE OF THE PROCEEDINGS , INCLUDING THE FINAL DECISION TO AWARD THE CONTRACT . ANY DISPUTE REGARDING THE AWARD OF A CONTRACT IS NECESSARILY A DISPUTE BETWEEN THE TENDERER AND THE ACP STATE AND MUST THEREFORE BE RESOLVED BY ARBITRATION IN ACCORDANCE WITH ARTICLE 132 ( 1 ) OF THE CONVENTION , WHICH APPLIES EQUALLY TO DISPUTES ARISING BETWEEN AN ACP STATE AND AN UNSUCCESSFUL TENDERER . IN THE ABSENCE OF ANY ACT OF THE COMMISSION ADDRESSED TO THE APPLICANTS THE COURT THEREFORE HAS NO JURISDICTION IN THE MATTER . ACCORDING TO THE COMMISSION BOTH THE CLAIM FOR ANNULMENT AND THE CLAIM FOR DAMAGES ARE INADMISSIBLE .

27 THE APPLICANTS DENY THAT RECOURSE TO ARBITRATION IS AN APPROPRIATE SOLUTION , AT LEAST IN THE CASE OF AN UNSUCCESSFUL TENDERER . THEY CONSIDER THAT THE COMMISSION CANNOT ESCAPE FROM ITS OBLIGATION TO ACCOUNT BEFORE THE COURT OF JUSTICE FOR ITS CONDUCT IN CARRYING OUT THE FUNCTIONS ATTRIBUTED TO IT IN THE CONTEXT OF THE EUROPEAN DEVELOPMENT FUND .

28 IN SO FAR AS THE APPLICATION IS BASED ON ARTICLES 173 AND 175 OF THE EEC TREATY REFERENCE SHOULD BE MADE TO THE CONSIDERATIONS SET OUT IN THE JUDGMENT OF 10 JULY 1984 ( CASE 126/83 , STS V COMMISSION , ( 1984 ) ECR 2769 ), WHERE THE COURT ANALYSED IN THE FOLLOWING TERMS THE RELATIONSHIPS WHICH ARISE IN CONNECTION WITH THE AWARD OF PUBLIC WORKS CONTRACTS FINANCED BY THE EUROPEAN DEVELOPMENT FUND BETWEEN THE COMMISSION AND THE ACP STATE CONCERNED ON THE ONE HAND AND BETWEEN THAT STATE AND UNDERTAKINGS WHICH SUBMIT TENDERS OR ARE AWARDED CONTRACTS ON THE OTHER :

' 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 .

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 . . . . 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 . . . . 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 . '

29 IT FOLLOWS FROM THOSE CONSIDERATIONS THAT IN THIS CASE THERE IS NO MEASURE CAPABLE OF BEING THE SUBJECT OF PROCEEDINGS UNDER ARTICLE 173 OF THE TREATY ; NOR CAN IT BE SAID THAT THERE IS A FAILURE TO ADOPT SUCH A MEASURE IN REGARD TO THE APPLICANTS IN RESPECT OF WHICH AN ACTION MAY BE BROUGHT UNDER ARTICLE 175 . AS A RESULT IT ALSO FOLLOWS THAT THE APPLICANT ' S CLAIMS ARE UNFOUNDED IN SO FAR AS THEY SEEK TO OBTAIN THE PRODUCTION OF DOCUMENTS WHICH MIGHT CONSTITUTE EVIDENCE OF AN ACT OR FAILURE TO ACT ON THE PART OF THE COMMISSION IN RESPECT OF WHICH AN ACTION MIGHT LIE .

30 THE APPLICATION IS THEREFORE INADMISSIBLE IN SO FAR AS IT IS BASED ON ARTICLES 173 AND 175 OF THE TREATY .

31 HOWEVER , THE OBJECTION OF INADMISSIBILITY RAISED BY THE COMMISSION MUST BE REJECTED IN SO FAR AS IT REFERS TO THE ACTION FOR DAMAGES BROUGHT PURSUANT TO ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY . IT WOULD BE WRONG TO DISMISS THE POSSIBILITY THAT ACTS OR CONDUCT OF THE COMMISSION OR ITS OFFICIALS AND AGENTS IN CONNEXION WITH PROJECTS FINANCED BY THE EUROPEAN DEVELOPMENT FUND MIGHT CAUSE DAMAGE TO THIRD PARTIES . ANY PERSON WHO CLAIMS TO HAVE BEEN INJURED BY SUCH ACTS OR CONDUCT MUST THEREFORE HAVE THE POSSIBILITY OF BRINGING AN ACTION , IF HE IS ABLE TO ESTABLISH LIABILITY , THAT IS , THE EXISTENCE OF DAMAGE CAUSED BY AN ILLEGAL ACT OR BY ILLEGAL CONDUCT ON THE PART OF THE COMMUNITY .

THE ACTION FOR DAMAGES

32 IN SUBSTANCE THE APPLICANTS COMPLAIN THAT BY MAKING REPRESENTATIONS TO THE ETHIOPIAN AUTHORITIES AND THE CONSULTING ENGINEERS THE COMMISSION DEPRIVED THEM OF THEIR STATUS OF ' LOWEST QUALIFIED TENDERER ' , RECOGNIZED BY THE TENDER COMMITTEE IN ITS MEETING OF 24 FEBRUARY 1983 , AND GAVE PREFERENCE TO A TENDERER , RUSH & TOMPKINS BV , WHICH HAD NOT ESTABLISHED ITS TECHNICAL AND FINANCIAL CAPABILITY . IN PARTICULAR THE APPLICANTS COMPLAIN THAT THE COMMISSION PERMITTED THE ALTERATION OF THE TENDER DOCUMENTS BY ALLOWING RUSH & TOMPKINS , AFTER THE DATE ON WHICH THE TENDERS WERE OPENED , TO SUBMIT GUARANTEES PROVIDED BY THE RUSH & TOMPKINS GROUP PLC , WHICH IS INCONSISTENT WITH NORMAL PRACTICE IN INTERNATIONAL TENDERS AND IS CONTRARY TO THE PRINCIPLE OF EQUALITY OF TENDERERS .

33 IN VIEW OF THE EXTREMELY SUMMARY NATURE OF THE STATEMENT OF FACTS AND ARGUMENTS PRESENTED IN THIS REGARD BY THE APPLICANTS DURING THE WRITTEN PROCEDURE THE COURT ASKED THEM TO PRESENT MORE DETAILED ARGUMENT ON THE FOLLOWING QUESTIONS DURING THE ORAL PROCEDURE :

' AS REGARDS THE CLAIM FOR DAMAGES , THE APPLICANTS ARE ASKED TO SPECIFY WHAT THEY CONSIDER TO BE THE COMMISSION ' S CONDUCT WHICH GAVE RISE TO THE DAMAGE WHICH THEY CLAIM TO HAVE SUFFERED AND WHAT ARE THE CIRCUMSTANCES WHICH HAVE LED THEM TO THE VIEW THAT THE COMMISSION ' S CONDUCT IS ILLEGAL .

IN THAT CONTEXT THE TWO PARTIES ARE ASKED TO GIVE PARTICULAR CONSIDERATION TO THE QUESTION WHETHER THE INVESTIGATIONS UNDERTAKEN BY THE COMMISSION FOLLOWING THE FIRST ASSESSMENT MADE BY THE ETHIOPIAN AUTHORITIES OF THE TECHNICAL AND FINANCIAL QUALIFICATIONS OF THE LOWEST TENDERER ARE COMPATIBLE WITH INTERNATIONALLY ACCEPTED STANDARDS IN THE MATTER AND ESPECIALLY WITH CLAUSE 12 OF THE INSTRUCTIONS TO TENDERERS IN THE NOTES ON DOCUMENTS FOR CIVIL ENGINEERING CONTRACTS OF THE INTERNATIONAL FEDERATION FOR CONSULTING ENGINEERS ( FIDIC ). '

34 IT SHOULD NOTED THAT AT THE HEARING THE APPLICANTS ONLY REPLIED TO THE SECOND QUESTION . IN THAT REGARD THEY STATED THAT TO ALLOW THE EX POST FACTO INTRODUCTION OF DOCUMENTS SUCH AS THE ' CORPORATE GUARANTEE ' SUBMITTED BY RUSH & TOMPKINS BV WENT BEYOND THE SCOPE OF THE ' CLARIFICATIONS ' PERMITTED UNDER CLAUSE 12 OF THE FIDIC DOCUMENT AFTER THE OPENING OF A TENDER . ON THAT ISSUE THEY SUBMITTED EXPERTS ' OPINIONS FROM WHICH THE FOLLOWING POINTS MAY BE DRAWN .

35 A FIRST OPINION WAS DRAWN UP ON 6 NOVEMBER 1984 BY MR MARK LITTMAN , QC , A SPECIALIST IN THE FIELD OF INTERNATIONAL CONSTRUCTION CONTRACTS . AFTER OBSERVING THAT THE DUTCH SUBSIDIARY OF RUSH & TOMPKINS WAS PERMITTED TO SUBMIT A TECHNICAL AND FINANCIAL GUARANTEE BY ITS PARENT COMPANY AFTER THE OPENING OF TENDERS , HE DRAWS THE FOLLOWING CONCLUSIONS :

' THIS APPEARS TO ME TO BE IN CERTAIN RESPECTS CONTRARY TO THE PRINCIPLES INVOLVED IN GOOD INTERNATIONAL TENDERING PRACTICE :

( 1 ) IT SEEMS TO INVOLVE THE SUBMISSION OF A NEW TENDER BY THE DUTCH SUBSIDIARY AFTER THE FINAL DATE FOR THE SUBMISSION OF THE TENDERS , I.E . A TENDER FOR THE FIRST TIME ACCOMPANIED BY A TECHNICAL AND FINANCIAL GUARANTEE . THE PRINCIPLES WHICH I HAVE OUTLINED ABOVE , NAMELY , EQUALITY AND AVOIDANCE OF DISCRIMINATION BETWEEN THE TENDERERS , WOULD SUGGEST THAT SUCH A TENDER SHOULD HAVE BEEN REJECTED .

( 2)ONE WOULD DOUBT WHETHER THE SUBSIDIARY BECAME QUALIFIED BY SUCH GUARANTEES . THE NECESSITY FOR THE GUARANTEES WOULD APPEAR TO SHOW THAT THE DUTCH TENDERER WAS UNQUALIFIED . IF A COMPANY WHICH WAS UNQUALIFIED COULD BECOME QUALIFIED BY THE ISSUE OF GUARANTEES THIS WOULD MEAN THAT A COMPANY WITH NO FINANCIAL RESOURCES AND WITHOUT ANY TECHNICAL EXPERTISE COULD SO QUALIFY .

( 3)IN SUBSTANCE WHAT HAPPENED IS THAT A NEW TENDERER HAS BEEN ALLOWED TO TENDER AFTER THE FINAL DATE FOR THE SUBMISSION OF TENDERS , NAMELY THE PARENT COMPANY . THIS WOULD ALSO BE CONTRARY TO THE ABOVE PRINCIPLES . OF COURSE , THE TENDER IS PRESENTED AS BEING ONE MADE BY THE SUBSIDIARY AND NO DOUBT THE PARENT COMPANY HAD ITS OWN REASONS FOR MAKING THE SUBSIDIARY RATHER THAN THE PARENT THE TENDERER . HOWEVER , THE SUBSTANCE OF THE MATTER APPEARS TO ME AS STATED . '

36 A SECOND OPINION WAS DRAWN UP ON 11 NOVEMBER 1984 BY CYRIL ARTHUR GILLOTT , AN ENGINEER SPECIALIZING IN INTERNATIONAL CONSTRUCTION CONTRACTS . AFTER ANALYSING THE SITUATION HE CONSIDERS THAT THE PROCEDURE FOLLOWED WAS NOT CONSISTENT WITH NORMAL PRACTICE . HE TAKES THE VIEW THAT IN REFERRING TO ' CLARIFICATIONS ' ITEM 12 OF THE FIDIC DOCUMENT IS PRIMARILY CONCERNED WITH ENSURING THAT AMBIGUITIES , OMISSIONS , MODIFICATIONS OF CLAUSES AND SPECIFICATIONS AND THE LIKE ARE EXPLAINED , MADE GOOD OR REMOVED SO THAT ALL TENDERS CAN BE COMPARED ON AN EQUAL BASIS . HE CONSIDERS THAT THE GUARANTEE BELATEDLY REQUESTED FROM THE RUSH & TOMPKINS GROUP PLC WENT WELL BEYOND THE SCOPE OF SUCH CLARIFICATIONS .

37 IN ITS DEFENCE THE COMMISSION ARGUES THAT IT CANNOT BE BOUND BY ANY ASSESSMENTS MADE BY THE TENDER COMMITTEE AT THE MEETING OF 24 FEBRUARY 1983 AND THAT IT WAS UNDER A DUTY TO REVIEW CRITICALLY THE PROPOSALS MADE BY THE COMMITTEE . IN THAT REGARD IT PROVIDES THE FOLLOWING DETAILS .

38 IN THE FIRST PLACE , THE COMMISSION POINTS OUT THAT THE MINUTES OF THE MEETING OF THE TENDER COMMITTEE ON 24 FEBRUARY 1983 WERE SENT FROM ADDIS ABABA ON 28 FEBRUARY AND WERE RECEIVED BY THE COMMISSION AT THE BEGINNING OF MARCH ; IT WAS ONLY THEN THAT ITS OFFICERS WERE IN A POSITION TO EXAMINE THE PAPERS . THE FACT THAT AT THE SAME TIME THE ETHIOPIAN AUTHORITIES HAD ALREADY INVITED THE APPLICANTS TO ATTEND FOR NEGOTIATIONS ON THE CONCLUSION OF THE CONTRACT THEREFORE SEEMS PREMATURE ON THEIR PART , AND CANNOT BIND THE AUTHORITIES OF THE EUROPEAN DEVELOPMENT FUND . IN THAT REGARD THE COMMISSION EMPHASIZES THAT ALTHOUGH ITS LOCAL REPRESENTATIVE SIGNED THE MINUTES OF THE MEETING HE WAS NOT A MEMBER OF THE TENDER COMMITTEE , WHICH WAS RESPONSIBLE ONLY TO THE ETHIOPIAN AUTHORITIES , AND THAT HE HAD NO POWER TO BIND THE EUROPEAN DEVELOPMENT FUND . SO LONG AS THE CHIEF AUTHORIZING OFFICER HAD NOT GIVEN HIS APPROVAL THE NATIONAL AUTHORIZING OFFICER AND THE EMPLOYER HAD NO LEGAL BASIS FOR OPENING NEGOTIATIONS WITH ANY ONE OF THE TENDERERS .

39 ACCORDING TO THE COMMISSION , AFTER CAREFUL STUDY OF THE TENDER DOCUMENTS THE OFFICERS OF THE EUROPEAN DEVELOPMENT FUND DISCOVERED INCONSISTENCIES IN THE POSITION TAKEN BY KAMPSAX . THEY ALSO FOUND THAT THE DOCUMENTS CONTAINED EVIDENCE THAT RUSH & TOMPKINS BV WAS SUPPORTED BY THE RUSH & TOMPKINS GROUP PLC , WHOSE QUALIFICATIONS IN THE FIELD WERE INDISPUTABLE . THAT WAS THE CONCLUSION DRAWN FROM APPENDIX A TO THE TENDER OF RUSH & TOMPKINS BV , OF WHICH THE COMMISSION HAS SUBMITTED A SUMMARY TO THE COURT . THE COMMISSION THEREFORE CONCLUDED THAT THERE WAS NO VALID REASON TO EXCLUDE THE TENDERER WHICH HAD SUBMITTED THE MOST FAVOURABLE TENDER . KAMPSAX GRADUALLY CAME ROUND TO THAT POINT OF VIEW , AND IN AN AIDE-MEMOIRE OF 6 JUNE 1983 IT RECOMMENDED THAT THE CONTRACT SHOULD BE AWARDED TO RUSH & TOMPKINS BV SUPPORTED BY THE RUSH & TOMPKINS GROUP . THAT WAS ACCEPTED BY THE EMPLOYER AND THE CHIEF AUTHORIZING OFFICER GAVE HIS AGREEMENT ON 10 JUNE ; THE CONTRACT WAS EXECUTED BETWEEN THE EMPLOYER AND RUSH & TOMPKINS BV ON 6 JULY 1983 AND ENDORSED BY THE NATIONAL AUTHORIZING OFFICER AND THE COMMISSION DELEGATE ON THE AUTHORITY OF THE CHIEF AUTHORIZING OFFICER .

40 THE COMMISSION CONSIDERS THAT ITS ACTION IS JUSTIFIED BY THE PROVISIONS OF ARTICLES 121 ( 2 ) AND 123 ( 2 ) ( C ) OF THE CONVENTION . TO REQUEST CLARIFICATIONS , WITHIN THE SCOPE OF ITS RESPONSIBILITIES , ON THE POINTS INITIALLY DISPUTED , THAT IS , THE TECHNICAL AND FINANCIAL CAPABILITY OF THE LOWEST TENDERER , IS NORMAL PRACTICE IN SUCH MATTERS AND IS CONSISTENT WITH FIDIC STANDARDS . INASMUCH AS THE REQUEST FOR INFORMATION DID NOT RESULT IN ANY MODIFICATION OF THE AMOUNT OF THE TENDER THERE WAS NO DISCRIMINATION AGAINST THE OTHER TENDERERS . THE COMMISSION DENIES THAT IT EXERTED ANY PRESSURE WHATEVER ON THE EMPLOYER AND THE CONSULTANTS ; ITS ACTIONS DID NOT GO BEYOND THE DISCUSSION NORMAL IN SUCH MATTERS .

41 IN SUPPORT OF THIS LAST POINT THE COMMISSION SUBMITS THE REPORT OF AN EXPERT , K . N . DROBIG , A CONSULTANT TO THE FIRM W . S . ATKINS & PARTNERS , DRAWN UP ON 16 FEBRUARY 1984 . IN THAT REPORT THE EXPERT RAISES THE QUESTION WHETHER THE EVALUATION PROCESS FOLLOWED BY THE EMPLOYER WAS REASONABLE AND IN CONFORMITY WITH GOOD PRACTICE . AFTER REFERRING TO THE FACT THAT IN THIS CASE AN OPEN TENDER PROCEDURE WITHOUT A PRE-QUALIFICATION STAGE HAD BEEN CHOSEN , SO THAT IT WAS NECESSARY TO EVALUATE THE CAPABILITY OF TENDERERS TO CARRY OUT THE WORKS AT THE SAME TIME AS ALL THE OTHER QUESTIONS RAISED IN THE TENDER PROCEDURE , HE MAKES THE FOLLOWING REMARKS :

' ON GROUNDS OF PUBLIC ACCOUNTABILITY IT IS NOT UNREASONABLE TO ARGUE THAT THE EMPLOYER WAS UNDER AN OBLIGATION TO CALL FOR FURTHER INFORMATION IF THERE WAS REASONABLE DOUBT PARTICULARLY BEARING IN MIND THAT A THIRD PARTY WAS FINANCING THE PROJECT . IN THE EVENT IT WOULD APPEAR THAT THERE WAS REASONABLE DOUBT . ACCORDINGLY , IT APPEARS TO ME THAT THE EMPLOYER SHOULD HAVE ASKED FOR SUCH CLARIFICATION INITIALLY ( AND SUCH FURTHER CLARIFICATION AS WAS SUBSEQUENTLY CONSIDERED NECESSARY ) AND THIS IS THE ACTION THAT WAS TAKEN . IN THE FINAL EVENT SOUND EVALUATION PROCEDURES WERE FOLLOWED AND THE ORIGINAL OBJECTION AGAINST RUSH & TOMPKINS BV APPEARED TO HAVE BEEN WITHDRAWN AS THE FURTHER INFORMATION BECAME AVAILABLE AND THE SITUATION CLARIFIED . VIEWING THE SITUATION WITH HINDSIGHT IT APPEARS UNFORTUNATE THAT IN THE PROCESS SO MUCH DELAY OCCURRED . NEVERTHELESS , I BELIEVE THE RIGHT PROCEDURE WAS FOLLOWED ALBEIT THAT THE PROCESS WAS EXTENDED AS A CONSEQUENCE . '

42 THE COMMISSION THEREFORE CONSIDERS THAT ITS CONDUCT IN THE MATTER CANNOT BE HELD TO BE ILLEGAL AND THAT THE ESSENTIAL BASIS FOR ANY FINDING OF LIABILITY ON THE PART OF THE COMMUNITY IS THEREFORE LACKING .

43 THE ARGUMENTS SUBMITTED BY THE PARTIES CALL FOR THE FOLLOWING OBSERVATIONS .

44 AS THE COURT EMPHASIZED IN ITS JUDGMENT OF 10 JULY 1984 , REFERRED TO ABOVE , THE COMMISSION IS RESPONSIBLE FOR PREPARING AND ADOPTING FINANCING DECISIONS ON PROJECTS AND PROGRAMMES . THE SATISFACTORY IMPLEMENTATION OF SUCH 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 .

45 IT FOLLOWS FROM THE FOREGOING THAT THE DECISION OF THE TENDER COMMITTEE ESTABLISHED BY THE ETHIOPIAN GOVERNMENT , RECORDED IN THE MINUTES OF THE MEETING OF 24 FEBRUARY 1983 , DID NOT BIND THE CHIEF AUTHORIZING OFFICER . THE FACT THAT THE LOCAL DELEGATE SIGNED THOSE MINUTES COULD NOT HAVE THAT EFFECT . ACCORDING TO SUBPARAGRAPHS ( B ), ( C ) AND ( E ) OF ARTICLE 123 ( 2 ) OF THE CONVENTION , THE EUROPEAN DEVELOPMENT FUND CAN ONLY BECOME BOUND AT THE END OF A PROCEDURE CONSISTING OF A PROPOSAL FOR THE PLACING OF THE CONTRACT MADE BY THE NATIONAL AUTHORIZING OFFICER , FOLLOWED BY THE AGREEMENT OF THE CHIEF AUTHORIZING OFFICER , WHICH MAY BE GIVEN THROUGH THE AGENCY OF THE LOCAL DELEGATE , AFTER AN EXAMINATION BY THE COMMISSION OF THE QUESTION WHETHER THE TENDER COMPLIES WITH THE CRITERIA LAID DOWN IN ARTICLE 123 ( 2 ) ( C ) AND ARTICLE 130 ( 1 ), THAT IS , WHETHER THE TENDER SELECTED IS THE LOWEST , IT IS ECONOMICALLY THE MOST ADVANTAGEOUS AND DOES NOT EXCEED THE SUM EARMARKED FOR THE CONTRACT . IT IS CLEAR THAT AT THE TIME OF THE TENDER COMMITTEE ' S DISCUSSION THOSE CONDITIONS WERE NOT YET MET . AT NO TIME , THEREFORE , WERE THE APPLICANTS DESIGNATED AS ' LOWEST QUALIFIED TENDERER ' IN CIRCUMSTANCES SUCH AS TO COMMIT THE EUROPEAN DEVELOPMENT FUND .

46 AS A RESULT THE EMPLOYER ' S INVITATION TO THE APPLICANTS AND ITS SUBSEQUENTLY EXPRESSED PREFERENCE FOR THEM COULD IN NO WAY HAVE THE EFFECT OF BINDING THE CHIEF AUTHORIZING OFFICER . IN PARTICULAR , THE COMMUNICATIONS OF THE ETHIOPIAN AUTHORITIES AND THE CRITICISMS OF THE COMMISSION CONTAINED THEREIN DO NOT CONSTITUTE EVIDENCE OF CONDUCT ON THE PART OF THE COMMISSION FOR WHICH THE COMMUNITY MIGHT INCUR LIABILITY .

47 WITH REGARD TO THE CLARIFICATIONS WHICH THE OFFICERS OF THE EUROPEAN DEVELOPMENT FUND SOUGHT TO OBTAIN ON THE POINTS INITIALLY DISPUTED BY THE CONSULTANTS AND BY THE TENDER COMMITTEE REGARDING THE TECHNICAL AND FINANCIAL QUALIFICATION OF THE LOWEST TENDERER , IT MUST BE STATED THAT THE COMMISSION WAS NOT ONLY ENTITLED BUT WAS IN FACT UNDER A DUTY TO OBTAIN THAT INFORMATION IN FULFILMENT OF THE RESPONSIBILITIES CONFERRED ON IT IN THE INTEREST OF THE COMMUNITY BY ARTICLES 121 AND 123 OF THE CONVENTION , IN ORDER TO ENSURE THE ECONOMICAL ADMINISTRATION OF THE RESOURCES OF THE EUROPEAN DEVELOPMENT FUND . CONTRARY TO THE APPLICANTS ' ASSERTIONS , THE REQUESTS FOR CLARIFICATIONS , WHICH LED TO THE SUBMISSION BY RUSH & TOMPKINS BV OF A GUARANTEE FURNISHED BY THE RUSH & TOMPKINS GROUP PLC , DID NOT HAVE THE EFFECT OF SUBSTITUTING THE PARENT COMPANY FOR ITS SUBSIDIARY OR OF ALTERING A POSTERIORI THE CONDITIONS OF THE TENDER PROCEDURE . IRRESPECTIVE OF THE CONCLUSIONS WHICH THE COMMISSION COULD DRAW FROM THE TENDER DOCUMENTS THEMSELVES , THE PURPOSE OF THE GUARANTEE PROVIDED BY THE GROUP WAS ONLY TO MAKE EXPLICIT A LEGAL SITUATION WHICH ALREADY EXISTED OBJECTIVELY WHEN RUSH & TOMPKINS BV SUBMITTED ITS TENDER , BY REASON OF ITS RELATIONSHIP WITH THE GROUP OF WHICH IT WAS A MEMBER . IT SHOULD BE ADDED THAT THE CLARIFICATIONS SOUGHT DID NOT PREJUDICE THE EQUALITY OF THE TENDERERS , SINCE , BY ELIMINATING DOUBTS WHICH HAD ARISEN AS TO ITS QUALIFICATIONS , THEY SERVED ONLY TO RE-ESTABLISH THE LOWEST TENDERER IN THE POSITION TO WHICH IT WAS ENTITLED BY REASON OF THE AMOUNT OF ITS TENDER .

48 IT MAY THEREFORE BE HELD , ON THE BASIS OF THE CASE AS IT STANDS AND WITHOUT SEEKING FURTHER DOCUMENTARY EVIDENCE , THAT THE ACTION OF THE COMMISSION AND ITS OFFICERS CANNOT BE CONSIDERED ILLEGAL AND THAT THERE IS NO LEGAL BASIS FOR THE ACTION FOR DAMAGES . THE QUESTION OF THE ASSESSMENT OF THE DAMAGE ALLEGED TO HAVE BEEN SUFFERED BY THE APPLICANTS THEREFORE BECOMES IRRELEVANT .

49 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION MUST BE DISMISSED AS UNFOUNDED IN SO FAR AS IT IS BASED ON ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .

Decision on costs

COSTS

50 UNDER ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE THE COURT MAY , WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL , ORDER THAT THE PARTIES BEAR THEIR OWN COSTS . IN THIS CASE IT SHOULD BE BORNE IN MIND THAT EVEN IF IT COULD NOT LEGALLY BIND THE EUROPEAN DEVELOPMENT FUND , THE SIGNATURE BY THE COMMISSION ' S LOCAL DELEGATE OF THE MINUTES OF THE MEETING OF THE TENDER COMMITTEE WITHOUT RESERVE OR QUALIFICATION LED THE APPLICANTS TO BELIEVE THAT THEIR LEGAL POSITION WAS THAT WHICH THEY HAVE ASSERTED BEFORE THE COURT . IT THEREFORE APPEARS FAIR AND REASONABLE TO ORDER THAT THE PARTIES BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FOURTH CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION MADE BY THE APPLICANTS UNDER ARTICLE 91 OF THE RULES OF PROCEDURE FOR AN ORDER REQUIRING THE COMMISSION TO PRODUCE CERTAIN DOCUMENTS ;

( 2)DISMISSES THE APPLICATION AS INADMISSIBLE IN SO FAR AS IT IS BASED ON ARTICLES 173 AND 175 OF THE EEC TREATY ;

( 3)DISMISSES THE APPLICATION AS UNFOUNDED IN SO FAR AS IT IS BASED ON ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ;

( 4)ORDERS THE PARTIES TO PAY THEIR OWN COSTS .