Case C‑439/13 P

Elitaliana SpA

v

Eulex Kosovo

‛Appeal — Public service contracts — Joint Action 2008/124/CFSP — Call for tenders for helicopter support for the Eulex Mission in Kosovo — Action brought against the decision awarding the contract — Article 24(1), second subparagraph, TEU — Article 275, first paragraph, TFEU — Common foreign and security policy (CFSP) — Jurisdiction of the Court — Article 263, first paragraph, TFEU — Meaning of ‘bodies, offices or agencies of the Union’ — Measures attributable to the European Commission — Excusable error’

Summary — Judgment of the Court (Fifth Chamber), 12 November 2015

Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the defendant — Designation as defendant, without error on the applicant’s part, of a person other than the body that adopted the contested measure — Inadmissibility — Limits — Information which makes it possible to identify without any ambiguity the party against whom an application is made — None — Obligation on the part of the General Court to identify the party against whom the application is made — No such obligation

Actions for annulment — Capacity to act as defendant — EU Security and Defence Policy Mission — Measures adopted pursuant to delegated powers in connection with the award of public contracts — Whether attributable to the delegating institution — Action brought against the EU Mission — Inadmissibility

Actions for annulment — Capacity to act as defendant — EU Security and Defence Policy Mission not having legal personality — Not a body, office or agency of the Union — Measures adopted by the Head of such a Mission in budgetary and financial matters — Whether attributable to the Commission — Action inadmissible

Given that the question of the Court’s jurisdiction over an action is a matter of public policy, that question may be considered by the Court at any stage in the proceedings, even of its own motion. (see para. 37)

The General Court and, in the case of an appeal, the Court of Justice have jurisdiction to hear a case brought by a tenderer who has been unsuccessful in a public procurement procedure against measures adopted by an EU Mission that is civilian in nature established on the basis of a Joint Action in a third country. According to the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court does not, in principle, have jurisdiction with respect to the provisions relating to the Common Foreign and Security Policy or with respect to acts adopted on the basis of those provisions. Nevertheless, those provisions introduce a derogation from the rule of the general jurisdiction which Article 19 TEU confers on the Court of Justice to ensure that in the interpretation and application of the Treaties the law is observed, and they must, therefore, be interpreted narrowly. In that regard, a decision to award a public contract taken by an EU Mission that is civilian in nature, whose annulment is sought on the basis of an infringement of the rules of EU public procurement law, relates to the award of a public contract which has given rise to expenditure to be charged to the EU budget, in accordance with the first subparagraph of Article 41(2) TEU and Article 16(2) of Joint Action 2008/124 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo. Accordingly, the contract is issue is subject to the provisions of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities. In those circumstances, the scope of the limitation, by way of derogation, on the Court’s jurisdiction, which is provided for in the final sentence of the second subparagraph of Article 24(1) TEU and in Article 275 TFEU, cannot be considered to be so extensive as to exclude the Court’s jurisdiction to interpret and apply the provisions of Regulation No 1605/2002 with regard to public procurement. (see paras. 41-43, 46, 48, 49, 50)

Article 263 TFEU provides that the Court is to review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects. As regards the Mission established on the basis of Joint Action 2008/124 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo, that Mission could not be regarded as having legal personality, since Joint Action 2008/124 classified that entity as a ‘Mission’ and since, in political and strategic matters, the Mission was under the authority and control of the Council and the High Representative of the Union for Foreign Affairs and Security Policy, while, in budgetary and financial matters, the Head of Mission exercised his powers under the supervision and authority of the Commission. Accordingly, since Eulex Kosovo did not have legal personality and since provision was not made for it to be a party to proceedings before the European Union Courts, the conclusion must be that Eulex Kosovo was a Mission, of limited duration, which could not be a body, office or agency within the meaning of the first paragraph of Article 263 TFEU. (see paras 54, 58, 59)

Since the measures adopted by the Mission established on the basis of Joint Action 2008/124 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo, in the context of a procedure for the award of a public contract, are attributable to the Commission, Eulex Kosovo does not, on that account, have legal capacity to be a defendant in an action for annulment under Article 263 TFEU concerning that procedure. The Commission, by the contract which it signed with the Head of Mission of Eulex Kosovo pursuant to Articles 8(5) and 16(4) of Joint Action 2008/124 and Article 54(2)(d) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, delegated to the Head of Mission its power to implement the budget. In the context of that delegation, the Head of Mission of Eulex Kosovo was required, as the person to whom the Commission had delegated its power, to comply with the budgetary rules of EU law, including the rules governing public procurement, as provided for in Title V of Part One of Regulation No 1605/2002. In that regard, measures adopted pursuant to delegated powers are normally attributed to the delegating institution, on which it falls to defend the measure in question in judicial proceedings. That conclusion is not contrary to the principles whereby the general scheme of the Treaty is to make a direct action available against all measures adopted by the institutions which are intended to produce legal effects. A decision taken by Eulex Kosovo in the area of public procurement is in fact amenable to judicial review, provided, however, that it is not Eulex Kosovo, but rather the Commission, as the delegating authority, which is designated in the application for annulment of that decision. (see paras 62-64, 66, 67)

The designation in the application of a defendant other than the body responsible for adopting the contested measure does not render the application inadmissible if the latter contains information which makes it possible to identify without any ambiguity the party against whom the application is made, such as the designation of the contested measure and the body responsible for it. When the application is made against a person other than the person to whom the contested measure is attributable, the Court may neither disregard the applicant’s clear intention nor replace it with its own and has no choice but to declare the action inadmissible. In that regard, when an application is, without any ambiguity, made against an entity which the applicant maintains has the status of a body, office or agency of the Union within the meaning of the first paragraph of Article 263 TFEU and the applicant has at no point brought an action against any party other than that entity, the General Court is not required, where the entity defending the action does not have that status, to identify the party against whom the action should have been brought. (see paras 73, 74)

See the text of the decision. (see para. 75)