Parties

Grounds

Operative part



Parties

In Case T‑395/11,

Elti d.o.o., established in Gornja Radgona (Slovenia), represented by N. Zidar Klemenčič, lawyer,

applicant,

v

Delegation of the European Union to Montenegro, represented initially by N. Bertolini, acting as Agent, and subsequently by J. Stuyck and A.-M. Vandromme, lawyers,

defendant,

APPLICATION, principally, for annulment of the decision of the Delegation of the European Union to Montenegro of 21 March 2011 rejecting the tender submitted by the applicant in the public procurement procedure for the supply of equipment for the digitalisation of the Montenegrin Public Broadcasting and, by way of corollary claim, of the decision to award that contract to another undertaking an, in the alternative, for damages,

THE GENERAL COURT (Eighth Chamber),

composed of L. Truchot, President, M.E. Martins Ribeiro (Rapporteur) and A. Popescu, Judges,

Registrar: E. Coulon,

makes the following

Order

Grounds

Background to the dispute

1. On 14 September 2010, a supply procurement notice concerning the award of a contract entitled ‘Support to the Digitalisation of the Montenegrin Public Broadcasting – Supply of equipment, Montenegro’, in order to establish a contract to supply goods, was published in the Supplement to the Official Journal of the European Union (OJ 2010/S 178-270613), under the reference EuropeAid/129435/C/SUP/ME. That notice contained the following reference: ‘Awarding authority: the European Union, represented by Delegation of the European Union to Montenegro, on behalf of and for the account of the beneficiary country – Montenegro’.

2. The financing of the project in question is part of Commission Decision C(2009) 6420 of 20 August 2009 adopting a national programme for Montenegro under the IPA transition assistance and institution building component for 2009, the annexes to which contain a list of projects, including the one that is the subject-matter of the present proceedings. The legal basis for that Commission decision is Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA) (OJ 2006 L 210, p. 82).

3. The implementation of that programme led to the conclusion of a financing agreement by the Commission, represented by the Head of Delegation, and the Government of Montenegro, on 18 October and 6 November 2009 respectively.

4. On 15 November 2010, the applicant, Elti d.o.o., a company governed by Slovenian law, submitted a tender in connection with the abovementioned procedure.

5. By letter of 13 December 2010, the Delegation of the European Union to Montenegro informed the applicant, first, that its tender had been rejected on two technical grounds and, second, that the tendering procedure had been cancelled on the ground that none of the tenderers fulfilled all of the conditions in the invitation to tender.

6. By letter of 26 January 2011, the Delegation of the European Union to Montenegro invited the applicant to take part in a negotiated procedure concerning the same project, under reference EuropeAid/129435/C/SUP/ME‑NP, stating that the initial invitation to tender dossier remained valid in its entirety for the purposes of that negotiated procedure.

7. By letter of 22 February 2011, the Delegation of the European Union to Montenegro requested the applicant to provide clarification on nine points concerning the technical part of its new tender submitted on 10 February 2011, which the applicant did by letter of 24 February 2011.

8. By letter of 23 March 2011, the applicant asked the Delegation of the European Union to Montenegro to inform it of the decision taken on the negotiated procedure.

9. By letter of 11 May 2011, the Delegation of the European Union to Montenegro informed the applicant as follows:

‘For your information, the process is still ongoing and we cannot disclose in this moment any further information. Let me assure you that we will inform you about the final decision very soon.’

10. On 27 May 2011, the applicant received a letter from the Delegation of the European Union to Montenegro, dated 21 March 2011, informing it that its tender had been rejected on the ground that ‘its technical capacity’ had been deemed not to satisfy a number of criteria specified in the tender dossier and that the contract had been awarded to Eurotel SpA for an amount of EUR 1 420 046.

11. By letter of 6 June 2011, addressed to the Delegation of the European Union to Montenegro, the applicant challenged the decision of 21 March 2011 and asked it to annul its ‘incorrect’ decision and to select it as supplier for the contract in question.

12. By letter of 16 June 2011, the Delegation of the European Union to Montenegro replied as follows to the applicant:

‘Thank you for your letter received on 6 June 2011. It raised some issues requiring an examination which is currently in progress. Further to section 2.4.15 of the Practical Guide to Contract Procedures for EC External Actions, you can expect a reply to your letter within 45 days from the date of its receipt by us.’

13. By letter of 18 July 2011, the Delegation of the European Union to Montenegro informed the applicant, inter alia, that there were no grounds to make revisions or amendments to the Committee’s decision which had found the applicant’s tender to be technically incompliant and had rejected it on those grounds.

Procedure and forms of order sought

14. By application lodged at the Registry of the Court on 26 July 2011, the applicant brought the present action.

15. By separate document, lodged at the Court Registry on 27 July 2011, the applicant made an application for interim measures, by which it claimed, in essence, that the President of the General Court should suspend the operation of the decision of the Delegation of the European Union to Montenegro by which its tender was rejected and the contract was awarded to another tenderer and, if the supply contract at issue had already been concluded, the operation of that contract.

16. By pleadings lodged on 22 August 2011, the applicant and the Delegation of the European Union to Montenegro replied to a question put by the Court concerning the legal capacity of the Delegation to act as defendant in the interim proceedings and in the main proceedings.

17. By order of 30 September 2011, the application for interim measures was dismissed, whilst costs were reserved.

18. By separate document registered at the Court Registry 26 October 2011, the Delegation of the European Union to Montenegro raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court. The applicant lodged its observations on that plea on 15 December 2011.

19. The applicant claims, in its application, that the Court should:

– declare that the Delegation of the European Union to Montenegro infringed Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), in particular Article 2 and Article 30(3) thereof;

– annul the negotiated procedure on the ground that, by failing to enable it to rectify or explain its tender, that delegation did not apply the principle of equal treatment to it;

– annul the decision to award the contract, adopted at the end of the negotiated procedure, by which that same delegation rejected its tender and awarded the contract to Eurotel;

– if the supply contract at issue has already been concluded, declare that contract null and void;

– order the Delegation of the European Union to Montenegro to pay it the amount of EUR 10 000 for costs, pursuant to Article 87 of the Rules of Procedure, including the costs of any intervening parties;

In the alternative, in the event that the contract has already been performed or the decision can no longer be annulled:

– declare that the said delegation infringed Directive 2004/18, in particular Article 2 and Article 30(3) thereof;

– order the said delegation to pay it damages of EUR 172 541.56 by way of compensation for losses suffered due to the tendering procedure;

– order the said delegation to pay the costs and to pay it a total amount of EUR 10 000 for legal costs, pursuant to Article 87 of the Rules of Procedure, including the costs of any intervening parties.

20. The Delegation of the European Union to Montenegro contends, in its objection of inadmissibility, that the Court should:

– declare the application for annulment inadmissible;

– order the applicant to pay the costs of both parties.

21. In its observations on the objection of inadmissibility, the applicant claims that the Court should dismiss it as unfounded and not established and that the Court should ‘recognise that pursuant to the Council Decision of 26 July 2010 establishing the organisation and functioning of the European External Action Service, paragraph 8, the Defendant represents the European Union in Montenegro regarding Contract reference number EuropeAid/129435/C/SUP/ME-NP dated 21 March 2011 and as such is a legitimate party in the legal proceeding in the instant case’.

Law

22. Pursuant to Article 114(3) of the Rules of Procedure, where a party applies to the General Court for a decision on admissibility not going to the substance of the case, the remainder of the proceedings on the plea of admissibility is to be oral unless the Court decides otherwise.

23. In this case, the Court considers that it has sufficient information from the documents before it and decides that there is no need to open the oral procedure.

24. The Delegation of the European Union to Montenegro contends that it cannot be a defendant in the present case because it does not enjoy the status of independent body and has not acted as such in the present case.

25. It is appropriate in that regard to consider the terms of Article 263(1) TFEU, which provides:

‘The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.’

26. It follows from that provision that actions for annulment may be brought against acts originating from certain designated institutions, but also, more generally, against acts adopted by ‘bodies, offices or agencies of the Union’, provided they are acts aimed at producing binding legal effects.

27. That does not mean that it can be inferred from the wording of Article 263(1) TFEU or from the European Union Courts’ case-law, as resulting from Case 294/83 Les Verts v Parliament (Les Verts ) [1986] ECR 1339, as the applicant has done, that any entity or structure coming under or working within the European Union’s organisational framework may automatically be regarded as an office or agency of the Union for the purposes of the aforementioned article.

28. The fact that the decision not to award the contract to the applicant may be considered to have adverse effects on it by bringing about a significant change in its legal position does not necessarily mean that the body which adopted that act has the legal capacity to defend that act before the European Union Courts.

29. It is necessary to ascertain whether, in the light of the provisions governing the status of the entity concerned, it has sufficient legal capacity in order to be considered as an independent body of the European Union and may be recognised as having legal capacity to be a defendant.

30. Delegations of the European Union are referred to as follows in Article 221 TFEU:

‘1. Union Delegations in third countries and at international organisations shall represent the Union.

2. Union Delegations shall be placed under the authority of the High Representative of the Union for Foreign Affairs and Security Policy ...’

31. Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service (OJ 2010 L 201, p. 30) (‘the decision of 26 July 2010’), adopted pursuant to Article 27(3) TEU, provides as follows in Article 1:

‘…

2. The EEAS, which has its headquarters in Brussels, shall be a functionally autonomous body of the European Union, separate from the General Secretariat of the Council and from the Commission with the legal capacity necessary to perform its tasks and attain its objectives.

3. The EEAS shall be placed under the authority of the High Representative of the Union for Foreign Affairs and Security Policy …

4. The EEAS shall be made up of a central administration and of the Union Delegations to third countries and to international organisations.’

32. Article 5 of the decision of 26 July 2010, entitled ‘Union Delegations’, includes the following provisions:

‘1. The decision to open or close a Delegation shall be adopted by the High Representative, in agreement with the Council and the Commission.

2. Each Union Delegation shall be placed under the authority of a Head of Delegation.

…

3. The Head of Delegation shall receive instructions from the High Representative and the EEAS, and shall be responsible for their execution.

In areas where the Commission exercises the powers conferred upon it by the Treaties, the Commission may, in accordance with Article 221(2) TFEU, also issue instructions to Delegations, which shall be executed under the overall responsibility of the Head of Delegation.

4. The Head of Delegation shall implement operational credits in relation to the Union’s projects in the corresponding third country, where sub-delegated by the Commission, in accordance with the Financial Regulation.

…

8. The Head of Delegation shall have the power to represent the Union in the country where the Delegation is accredited, in particular for the conclusion of contracts, and as a party to legal proceedings.

…’

33. The applicant claims, first, that that new legal provision, which came about as a result of the Treaty of Lisbon and which entered into force on 1 December 2009, transformed the Delegations of the Commission into Delegations of the European Union, which are independent players having legal personality.

34. However, the mere fact that, henceforth, the Delegations no longer represent solely the Commission but rather the European Union as a whole is not sufficient to confer on the Delegation of the European Union to Montenegro the legal capacity required to act as a defendant.

35. First, it must be borne in mind that it follows from Article 221 TFEU and from the decision of 26 July 2010 that the Delegation of the European Union to Montenegro is an integral part of the hierarchical and functional structure of the European External Action Service (EEAS) and is merely a division of that service, whereas the latter is clearly designated as an independent body of the European Union, holding the legal capacity required to carry out its missions. These points were, moreover, acknowledged by the applicant itself in its written pleadings.

36. In its order of 30 June 2011 in Case T‑264/09 Technoprocess v Commission and Delegation of the European Union to Morocco , not published in the ECR, paragraph 70, the Court relied precisely on the fact that the Commission’s Delegations were attached to it and were dependent on it, going on to hold that they had no legal personality and that an action brought against a Commission Delegation in a third country was inadmissible.

37. Second, in addition to the link of organic dependence with the EEAS, the decision of 26 July 2010 reveals a functional subordination of the Union Delegations and, more specifically, of the Heads of Delegation to the Commission, in the implementation of the budget of the European Union.

38. The specific relationship between the Heads of Delegation of the European Union and the Commission is described in detail in Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’), which had to be amended following the creation of the EEAS with the aim of, inter alia, ensuring ‘the continuity of the functioning of Union Delegations and, in particular, continuity and efficiency in the management of external aid by the Delegations’, according to the wording of recital 7 in the preamble to Regulation (EU, Euratom) No 1081/2010 of the European Parliament and of the Council of 24 November 2010 amending [the Financial Regulation] as regards the European External Action Service (OJ 2010 L 311, p. 9).

39. Thus, the second paragraph of Article 51 of the Financial Regulation provides that ‘… the Commission may delegate its powers of budget implementation concerning the operational appropriations of its own section to the Heads of Union Delegations’ and that, ‘[w]hen Heads of Union Delegations act as sub-delegated authorising officers of the Commission, they shall apply the Commission rules for the implementation of the budget and shall be submitted to the same duties, obligations and accountability as any other sub-delegated authorising officer of the Commission’.

40. Article 59 of the Financial Regulation states that ‘[a]uthorising officers by delegation or sub-delegation may act only within the limits set by the instrument of delegation or sub-delegation’ and that, ‘[w]here Heads of Union Delegations act as authorising officers by sub-delegation in accordance with the second paragraph of Article 51, they shall be subject to the Commission as the institution responsible for the definition, exercise, control and appraisal of their duties and responsibilities as authorising officers by sub-delegation’, with the Commission informing the High Representative at the same time.

41. Article 60a of the Financial Regulation states that Heads of Union Delegations acting as authorising officers by sub-delegation must, first, report to their authorising officer by delegation concerning, inter alia, the management of operations sub-delegated to them and, second, reply to any request by the authorising officer by delegation of the Commission.

42. According to Article 85 of the Financial Regulation, the Heads of Union Delegations acting as authorising officers by sub-delegation ‘shall be subject to the verifying powers of the internal auditor of the Commission for the financial management sub-delegated to them’.

43. It should further be noted that Regulation (EU, Euratom) No 1080/2010 of the European Parliament and of the Council of 24 November 2010 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of those Communities (OJ 2010 L 311, p. 1) added a new Article 96 to those regulations, the second paragraph of which provides that an ‘EEAS official who has to carry out tasks for the Commission as part of his duties shall take instructions from the Commission with regard to those tasks, in accordance with Article 221(2) [TFEU]’.

44. The abovementioned provisions lead to the conclusion that the Union Delegations may have a role of assisting the Commission in the implementation of the budget of the European Union at local level, more specifically in the event of implementation of projects financed under Union external aid programmes.

45. That assistance, which is part of a sub-delegation to the Head of Delegation, is done under the strict control of the Commission, which is, pursuant to Articles 317 TFEU and 319 TFEU, charged with the implementation of the budget and holds, under Article 51 of the Financial Regulation, the power to withdraw the delegation granted.

46. It thus follows from Article 221 TFEU, from the decision of 26 July 2010 and from the relevant provisions of the Financial Regulation referred to above that the legal status of the Union Delegations is characterised by a two-fold organic and functional dependence with respect to the EEAS and the Commission, which precludes their being considered a body for the purposes of Article 263 TFEU.

47. That conclusion is not affected by the wording, highlighted by the applicant, of Article 5(8) of the decision of 26 July 2010, which provides that the Head of Delegation has the power to represent the Union in the country where the Delegation is accredited, in particular for the conclusion of contracts, and as a party to legal proceedings.

48. That provision merely reinforces the notion that a Delegation does not act in its own name or on its own behalf and confers on the party responsible for it a legal capacity which is strictly limited as to territory and conferred only to the extent necessary for the Delegation to operate.

49. It is appropriate, in that regard, to recall the wording of Article 274 TFEU, according to which ‘[s]ave where jurisdiction is conferred on the Court of Justice of the European Union by the Treaties, disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States’ and of Article 335 TFEU, which reads as follows:

‘In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Union shall be represented by the Commission. However, the Union shall be represented by each of the institutions, by virtue of their administrative autonomy, in matters relating to their respective operation.’

50. Article 5(8) of the decision of 26 July 2010 cannot be read in isolation. It is indissociable from and must be read in the light of the overall legal scheme established by Article 221 TFEU, the decision of 26 July 2010 in its entirety and the relevant provisions of the Financial Regulation.

51. The applicant argues, second, that the Delegation of the European Union to Montenegro has always held itself out as being the representative of the European Union, having full power to act in its name. It states that the contract at issue was published on behalf of an awarding authority established by the Union, represented by its Delegation to Montenegro, that all forms of communication or decisions concerning the contract at issue were adopted by the same body, namely the Delegation as represented by its Head, with the Commission and the EEAS not being referred to in any of those documents.

52. It should be borne in mind that the applicant is seeking, by way of principal claim, annulment of the decision of the Head of the Delegation of the European Union to Montenegro of 21 March 2011 rejecting the tender submitted by it for the supply of equipment for the digitalisation of the Montenegrin Public Broadcasting and, by way of corollary claim, of the decision to award that contract to another undertaking, governed by Italian law.

53. As stated earlier, the financing of the project in question is part of Decision C(2009) 6420.

54. The implementation of the national programme for Montenegro adopted by that decision led to the conclusion of a financing agreement signed by the Commission, represented by the Head of Delegation, and the Government of Montenegro on 18 October and 6 November 2009 respectively.

55. Article 2 of that agreement provides for the Commission to implement the national programme for Montenegro under the IPA transition assistance and institution building component for 2009, on a centralised basis, under Article 53(1)(a) of the Financial Regulation.

56. Since the entry into force of Regulation No 1081/2010 on 29 November 2010, Article 53a of the Financial Regulation has provided that ‘[w]here the Commission implements the budget on a centralised basis, implementation tasks shall be performed, either directly by its departments or by Union Delegations in accordance with the second paragraph of Article 51, or indirectly, in accordance with Articles 54 to 57’.

57. It should be borne in mind that, according to the second paragraph of Article 51 of the Financial Regulation, the Commission may delegate its powers of budget implementation concerning the operational appropriations of its own section to the Heads of Union Delegations and that, in that scenario, the Heads of Delegation are to apply the Commission’s rules for the implementation of the budget and are subject to the same duties and obligations, including accountability, as any other sub-delegated authorising officer.

58. Moreover, with respect to IPA funds, the Commission made a sub-delegation of powers, as evidenced by the instrument of sub-delegation conferred on the Head of Delegation of the European Union to Montenegro, dated 18 April 2011 and replacing that of 7 July 2010, which preceded the decision of 26 July 2010.

59. That situation is the specific manifestation of the need to ensure continuity in the operation of the Delegations of the European Union including, in particular, the continuity and efficiency in the management of external aid by the Delegations, referred to in recital 7 in the preamble to Regulation No 1081/2010.

60. Moreover, the letter by which the Commission’s Directorate-General for Enlargement gave its agreement to the authorisation request from the Head of Delegation of the European Union to Montenegro to open a negotiated procedure for awarding the contract at issue illustrates the type of instructions which may be given to a Head of Delegation.

61. Although the applicant does not question that the decision to reject its tender was adopted by the Head of Delegation of the European Union to Montenegro acting in his capacity as sub-delegated authorising officer, it does argue that it is not an instrument originating from the Commission or the High Representative.

62. It should be borne in mind in that regard that measures adopted pursuant to delegated powers are normally attributed to the delegating institution, on which it falls to defend the measure in question before the courts (see, to that effect, Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957-1958] ECR 39, 58; Joined Cases 32/58 and 33/58 Snupat v High Authority [1959] ECR 127, 138; and Joined Cases T‑369/94 and T‑85/95 DIR International Film and Others v Commission [1998] ECR II‑357, paragraphs 52 and 53). Measures adopted by the European Anti-fraud Office (OLAF), if they are subject to challenge, must be attributed to the Commission (Case T‑309/03 Camós Grau v Commission [2006] ECR II‑1173, paragraph 66, and order of 15 March 2010 in Case T‑435/09 R GL2006 Europe v Commission and OLAF , not published in the ECR, paragraphs 14 to 16).

63. This outcome holds all the more true for signature by delegation (Case 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, paragraphs 11 to 14) and, as in the present case, in a scenario of sub-delegation.

64. In those circumstances, the measures adopted by the Head of Delegation of the European Union to Montenegro, acting in his capacity as sub-delegated authorising officer of the Commission, in the public procurement procedure for the supply contract bearing the reference EuropeAid/129435/C/SUP/ME-NP, do not confer capacity on that delegation to act as a defendant in legal proceedings; the measures at issue in the present case are attributable to the Commission.

65. The applicant’s submissions as to the importance of the staff of the Delegation of the European Union to Montenegro, the wording of the invitation to tender or the failure by the Commission or the EEAS to act as defendant in the interim proceedings are not such as to cast doubt on this conclusion.

66. Third, the applicant relies on Case T‑411/06 Sogelma v EAR [2008] ECR II‑2771 to argue that the objection of inadmissibility raised by the Delegation of the European Union to Montenegro should be dismissed.

67. In that case, the Court considered that it had jurisdiction to hear an action brought against the European Agency for Reconstruction (EAR) seeking annulment of decisions cancelling a tendering procedure for a works contract and organising a new invitation to tender.

68. It should be noted, however, that the situation of Delegations of the European Union is not in any way comparable to that of the EAR in the case which gave rise to the judgment in Sogelma v EAR , paragraph 66 above.

69. In support of its decision in that judgment, the Court stated, in paragraphs 3 and 50, that the EAR is a Community body expressly endowed with legal personality by Council Regulation (EC) No 2667/2000 of 5 December 2000 on the EAR (OJ 2000 L 306, p. 7) and having the power, conferred on it by the Commission, to implement Community assistance inter alia to Serbia and Montenegro.

70. That situation of indirect management in the case of the EAR is not the same as that of the Delegation of the European Union to Montenegro acting under the centralised management referred to in Article 53a of the Financial Regulation.

71. The Court has, moreover, taken into consideration the fact that, under Article 13(2) and Article 13a(3) of Regulation No 2667/2000, it was for the EAR to defend itself before the European Union Courts in disputes relating to its non-contractual liability being incurred and in disputes relating to decisions taken by it under Article 8 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

72. Such a capacity of representation in legal proceedings is clearly lacking for the Delegations of the European Union.

73. It follows from all the foregoing that the Delegation of the European Union to Montenegro cannot be considered a body, office or agency of the European Union and be recognised as having capacity to act as a defendant in legal proceedings.

74. It follows that the action brought against it by the applicant is inadmissible, both with regard to the action for annulment brought by way of principal claim and the claim, put forward in the alternative, for damages (see, to that effect, Case C‑370/89 SGEEM and Etroy v EIB [1992] ECR I‑6211, paragraph 16).

75. The action must therefore be dismissed.

Costs

76. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those of the interim proceedings, in accordance with the forms of order sought by the Delegat ion of the European Union to Montenegro, both in the interim proceedings and in the main proceedings.

Operative part

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby orders:

1. The action is dismissed.

2. Elti d.o.o. shall pay the costs, including those of the interim proceedings.

Luxembourg, 4 June 2012.