CMC Cooperativa muratori e cementisti and others v Commission of the European Communities.
Date: 1985-07-10
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
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 .