Keywords

Summary



Keywords

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1. Budget of the European Communities ° Financial Regulation ° Provisions on external aid ° Procedure for the award of public contracts financed under the PHARE Programme ° Respective roles of the beneficiary country and the Commission ° Competence of the beneficiary country in regard to the conclusion of contracts ° Commission measure open to an action for annulment on the part of a tenderer ° None ° Action to establish the liability of the Community ° Permissible

(EC Treaty, Arts 173, fourth para., 178 and 215, second para.; Council Regulation No 610/90, Arts 107, 108(2) and 109(2))

2. International agreements ° Agreement on the European Economic Area ° Temporal effect ° Not applicable to legal situations arising before the entry into force of the Agreement ° Procedure for the award of a public contract opened before but closed after 1 January 1994 ° Not applicable

Summary

1. Under the procedure for awarding public contracts established by the Financial Regulation applicable to the general budget of the European Communities, contracts financed under the PHARE Programme must be regarded as national contracts, which are binding only on the beneficiary country and the economic operator. The preparation, negotiation and conclusion of the contracts take place between those two partners only. By contrast, no legal relationship arises between the tenderers and the Commission, since the latter restricts itself to taking funding decisions on behalf of the Community, and its measures cannot have the effect, in relation to tenderers, of substituting a Community decision for the decision of the beneficiary country under the PHARE Programme.

In this area, therefore, there can be no Commission measure, so far as tenderers are concerned, which is capable of forming the subject-matter of an action under the fourth paragraph of Article 173 of the EC Treaty.

However, it must be possible to bring an action for damages, which is an autonomous form of action, since the possibility cannot be excluded that acts or conduct by the Commission in connection with the allocation or implementation of projects funded under the PHARE Programme might cause damage to third parties.

2. In the absence of transitional provisions, the Agreement on the European Economic Area takes effect in full as from its entry into force, namely 1 January 1994, and can therefore apply only to legal situations which came into being after its entry into force.

An undertaking responding to an invitation to tender the procedure for which was laid down by the Commission in 1993 cannot therefore, in support of an action for damages against the Community in respect of the Commission' s conduct at the time the contract was awarded, plead that the Commission infringed that Agreement, even if the Commission decision constituting that infringement dated from 1994, since that decision, which was delayed because of the undertaking, merely implements the conditions laid down by the invitation to tender and cannot be regarded as having created a new legal situation in relation to that which resulted, so far as concerns the rights of the participant undertakings, from that invitation to tender.