Elitaliana SpA v Eulex Kosovo.
Date: 2015-11-12
37. 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, to that effect, judgment in Commission  v Cyprus , C‑340/10, EU:C:2012:143, paragraph 20).
41. 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 CFSP or with respect to acts adopted on the basis of those provisions (judgment in Parliament  v Council , C‑658/11, EU:C:2014:2025, paragraph 69).
42. Nevertheless, the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU 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 (judgment in Parliament  v Council , C‑658/11, EU:C:2014:2025, paragraph 70).
43. Under the first subparagraph of Article 41(2) TEU, ‘operating expenditure to which the implementation of [the] Chapter [concerning the specific provisions on the CFSP] gives rise shall … be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decides otherwise’.
44. That provision is reiterated, in substance, in Article 4(2)(a) of the Financial Regulation.
45. In accordance with Article 17 TEU and Article 317 TFEU, it is the Commission’s responsibility to implement the European Union budget.
46. It follows from Article 16(2) of Joint Action 2008/124 that ‘[a]ll expenditure’ of the Eulex Kosovo Mission ‘shall be managed in accordance with the rules and procedures applicable to the general budget of the [European Union]’.
47. In the present case, it is not disputed that the Eulex Kosovo Mission is civilian in nature and that the expenditure relating to the helicopter-support service for the Eulex Kosovo Mission was to be allocated to the European Union budget.
48. Therefore, the measures at issue, whose annulment was sought on the basis of an infringement of the rules of EU public procurement law, related to the award of a public contract which gave rise to expenditure to be charged to the European Union budget. Accordingly, the contract at issue is subject to the provisions of the Financial Regulation.
49. Having regard to the specific circumstances of the present case, 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 the Financial Regulation with regard to public procurement.
50. Consequently, the General Court and, in the case of an appeal, the Court of Justice have jurisdiction to hear this case.
First and second grounds of appeal: (i) the General Court should have accepted that Eulex Kosovo was a ‘body, office or agency of the Union’ within the meaning of Article 263 TFEU and (ii) Eulex Kosovo was incorrectly equated with an EU delegation
Arguments of the parties
75. In the second place, the General Court correctly stated, at paragraph 42 of the order under appeal, that the only possible consequence of the case-law relied on by Elitaliana — more precisely paragraph 19 of the judgment in Schertzer  v Parliament , (25/68, EU:C:1977:158) — relating to excusable error, was that an action brought outside the procedural time-limits prescribed for that purpose need not be declared inadmissible. On that basis, it then concluded, implicitly but necessarily, that pleading excusable error served no purpose in the circumstances of the case, since, as found by the General Court, ‘[i]n the present case, it is not disputed that the applicant complied with the time-limit for bringing an action’ and that it at no time brought an action against a party other than Eulex Kosovo.
78. This ground of challenge, which is intended to reopen the question of whether the error made was excusable, must be rejected at the outset, since it is directed against grounds of the order included merely for the sake of completeness and cannot provide any basis for setting the order aside (see, to that effect, Aéroports de Paris  v Commission , C‑82/01 P, EU:C:2002:617, paragraphs 41 and 67 and the case-law cited). In fact, the General Court rightly considered, for the reasons already mentioned in paragraph 75 of this judgment, that pleading excusable error served no purpose in the present case.