3.

I now turn to the substance of the case. According to the applicants, the Commission is liable by virtue of its wrongful acts and, in the alternative, it is strictly liable. They rely on four submissions in support of their primary contentions, namely that the Commission has: (1) contravened the principle of nondiscrimination laid down by Article 215 of the Second Lomé Convention (Article 56 of the First Lomé Convention is meant) which provides that participation in tendering procedures and in other procedures for the award of contracts financed by the Fund is to be open on equal terms to all natural and legal persons of the Member States and ACP States; (2) acted in such a way as to frustrate the applicants' legitimate expectations; (3) been responsible for a number of irregularities invalidating the procedure which culminated in the award of the contract to Dravo Costruttori; and (4) infringed Article 25 (Article 21 is meant) of Protocol No 2 to the First Lomé Convention, according to which the contract must be awarded to the economically most advantageous tender. For the sake of convenience, I will consider the second and third submissions first. In those submissions the applicants charge the defendant with failing to provide them with sufficiently detailed information concerning the procedure, failing to state the reasons for the decisions appointing the expert and annuling the invitation to tender, denying them access to the correspondence exchanged between the Commission and the Somali authorities and withholding from them the reasons why Professor Lhoest fixed a timetable for direct negotiations in his first report. How are those arguments to be assessed? It seems to me that far from establishing the existence of unlawful conduct on the part of the Commission, those arguments call in question the legality of the procedure for the award of the contract and the validity of the measure adopted in connection therewith. If that is so, however, they are not matters within the jurisdiction of the Court of Justice. In the Muratori judgment the Court held that ‘in this case there is no measure [of the Commission] capable of being the subject of proceedings under Article 173 of the Treaty’ and the reason for that is obvious. The measures adopted by representatives of the Community in connection with tendering procedures for the award of public works contracts financed by the Fund are solely intended to establish whether or not the conditions for payment of the sums in question are fulfilled. In other words, they are not intended to ‘interfere with the principle that [the procedures and] the contracts in question remain national [procedures and] contracts which the ACP States alone are responsible for preparing, negotiating and concluding ... [with the result that] undertakings which submit tenders ... remain outside the ... dealings conducted ... between the Commission and the ACP States’ (judgment of 10 July 1984 in Case 126/83 STS v Commission [1984] ECR 2769). Even in the context of non-contractual liability, it is in any event quite clear that, whether or not they are unfounded, the applicants' charges — namely, failure to state the grounds on which certain measures were based and failure to give the applicants an opportunity to acquaint themselves with certain aspects of the tendering procedure — cannot be directed against the Community's representatives. The documents before the Court show in the first place that Professor Lhoest was appointed on 3 December 1980 by the national authorizing officer, that is to say the Somali Minister for Planning, from a list of experts submitted to him by the Commission at his request. The same applies to the decisions to annul the tendering procedure and to open negotiations with the three undertakings that had submitted the lowest tenders, which were also adopted, pursuant to Articles 10 and 53 of the General Conditions relating to Public Works and Supply Contracts Financed by the European Development Fund (Official Journal 1972, L 39, p. 3) (hereinafter referred to as ‘the General Conditions’) by the Minister for Planning in his letter of 15 March 1981 which was duly sent to all the undertakings concerned. Those undertakings were also requested to reply to the questions raised in the expert's report and to submit new tenders not later than 30 April 1981. Hence the measures for which the applicants hold the Commission responsible stem from the Somali authorities alone and, moreover, stated in full the reasons on which they were based, although Article 45 (4) of the aforesaid General Conditions expressly provides that the administration is not required to state the reasons for a measure annulling an invitation to tender. Moreover, I consider that there is no provision on which the applicants can found their contention that they should be given access to the correspondence exchanged between the Commission and the authorities awarding the contract. In any event, it is difficult to discern any causal connection between the defendants' alleged omission in that regard and the failure to award the contract to the applicants. Finally, with regard to the allegedly inadequate information concerning the detailed rules governing the tendering procedure, I would recall that, according to Article 30 (2) of Protocol No 2 to the First Lomé Convention, the national authorizing officer and not the Commission is responsible for issuing invitations to tender and supervising the preparation, submission and appraisal of projects. Accordingly, the second and third submissions must be rejected.