Avis juridique important

61983O0118

European Court reports 1983 Page 02583 Spanish special edition Page 00633

Summary Parties Subject of the case Grounds Operative part

Keywords

1 . PROCEEDINGS ON APPLICATION FOR ADOPTION OF INTERIM MEASURES - INTERIM MEASURES - JURISDICTION OF JUDGE HEARING APPLICATION FOR ADOPTION OF INTERIM MEASURES WHERE ONE OF THE PARTIES DISPUTES THE ADMISSIBILITY OF THE MAIN APPLICATION ( EEC TREATY , ARTS 185 AND 186 )

2 . INTERNATIONAL AGREEMENTS - AGREEMENTS CONCLUDED BY THE COMMUNITY - SECOND ACP-EEC CONVENTION - PROVISIONS ON FINANCIAL AND TECHNICAL COOPERATION - PROCEDURE FOR AWARDING PUBLIC WORKS CONTRACTS - JUDICIAL PROTECTION OF TENDERERS - APPLICATION OF THE PROVISIONS OF THE EEC TREATY NOT PRECLUDED ( SECOND ACP-EEC CONVENTION OF 31 OCTOBER 1979 , ARTS 91 TO 154 )

4 . INTERNATIONAL AGREEMENTS - AGREEMENTS CONCLUDED BY THE COMMUNITY - SECOND ACP-EEC CONVENTION - PROVISIONS ON FINANCIAL AND TECHNICAL COOPERATION - PROCEDURE FOR AWARDING PUBLIC WORKS CONTRACTS - POWERS OF THE COMMISSION ( SECOND ACP-EEC CONVENTION OF 31 OCTOBER 1979 , ARTS 91 TO 154 )

WHERE THE PRELIMINARY OBJECTIONS RAISED BY A PARTY REGARDING THE JURISDICTION OF THE COURT AND THE ADMISSIBILITY OF THE MAIN APPLICATION CONSTITUTE A PREREQUISITE FOR THE DECISION ON THE ADMISSIBILITY OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES , THE JUDGE HEARING THAT APPLICATION CANNOT ESCAPE THE NECESSITY OF RESOLVING PROVISIONALLY THE VARIOUS PROBLEMS RAISED . FROM HIS POINT OF VIEW , IT IS SUFFICIENT IF HE CAN ESTABLISH , WITH A SUFFICIENT DEGREE OF PROBABILITY , THAT THERE IS A BASIS , ALBEIT PARTIAL , ON WHICH THE COURT MAY FOUND ITS JURISDICTION IN ORDER TO ENABLE HIM TO ACKNOWLEDGE THE EXISTENCE OF A LEGITIMATE INTEREST IN THE ADOPTION OF INTERIM MEASURES DESIGNED TO PRESERVE THE EXISTING POSITION PENDING A DECISION ON THE SUBSTANCE OF THE CASE .

IT IS IMPOSSIBLE TO ACCEPT THE VIEW THAT , BY PARTICIPATING IN A TENDER ORGANIZED , UNDER THE PROVISIONS OF THE SECOND ACP-EEC CONVENTION WHICH RELATE TO FINANCIAL AND TECHNICAL COOPERATION , BY AN ACP STATE , IN CLOSE COOPERATION WITH THE COMMUNITY INSTITUTIONS , WITH A VIEW TO THE EXECUTION OF A PROJECT FINANCED ENTIRELY BY THE EUROPEAN DEVELOPMENT FUND , AN UNDERTAKING ESTABLISHED IN THE COMMUNITY IS AUTOMATICALLY PLACED OUTSIDE THE JUDICIAL PROTECTION AFFORDED TO IT BY THE PROVISIONS OF THE EEC TREATY .

WHILST IT SEEMS CERTAIN THAT A CONTRACT FOR PUBLIC WORKS CONCLUDED BETWEEN THE AUTHORITIES OF AN ACP STATE AND THE SUCCESSFUL TENDERER UNDER THE PROVISIONS ON FINANCIAL AND TECHNICAL COOPERATION CONTAINED IN THE SECOND ACP-EEC CONVENTION FALLS OUTSIDE THE JURISDICTION OF THE COURT , THAT DOES NOT MEAN THAT THERE CAN BE NO JUDICIAL REVIEW UNDER THE EEC TREATY OF ACTS OF THE COMMISSION IN THE CONTEXT OF THE TENDER PROCEDURE SET UP BY THE CONVENTION .

ALTHOUGH THE FUNCTIONS WHICH , UNDER THE PROVISIONS ON FINANCIAL AND TECHNICAL COOPERATION CONTAINED IN THE SECOND ACP-EEC CONVENTION , ARE PERFORMED BY THE COMMISSION IN CONNECTION WITH THE VARIOUS STAGES OF THE PREPARATION OF PROJECTS AND WITH PUTTING THOSE PROJECTS OUT TO TENDER ARE CLOSELY LINKED TO THE ACTS OF THE ACP STATE BENEFITING FROM THEM , THE FACT REMAINS THAT , ON THE ONE HAND , ALL THE DECISIVE OPERATIONS RELATING TO THE AWARD OF THE CONTRACT ARE SUBJECT TO THE APPROVAL OF THE COMMISSION AND , ON THE OTHER HAND , THE COMMISSION , IN ITS CAPACITY AS MANAGER OF THE EUROPEAN DEVELOPMENT FUND , RETAINS CONTROL OVER THE ALLOCATION AND TRANSFER OF FUNDS EARMARKED FOR THE EXECUTION OF THE VARIOUS PROJECTS UNTIL SUCH TIME AS THEY ARE USED .

IN CASE 118/83 R

CMC COOPERATIVA MURATORI E CEMENTISTI , RAVENNA ( ITALY ) ,

CRC COOPERATIVA REGGIANA COSTRUZIONI , REGGIO EMILIA ( ITALY ) ,

CMB COOPERATIVA MURATORI E BRACCIANTI , CARPI , MODENA ( ITALY ) ,

REPRESENTED BY PROFESSOR GIORGIO BERNINI , AVVOCATO AND PROCURATORE , MEMBER OF THE BOLOGNA BAR , AND STANLEY A . CROSSICK , SOLICITOR OF THE SUPREME COURT OF ENGLAND AND WALES , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B RUE PHILIPPE-II ,

APPLICANT ,

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ANTHONY MCCLELLAN , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR SUSPENSION OF THE PERFORMANCE OF A WORKS CONTRACT RELATING TO THE EXECUTION OF THE AMARTI DIVERSION PROJECT , PRESENTED BY THE PROVISIONAL MILITARY GOVERNMENT OF SOCIALIST ETHIOPIA AND FINANCED BY THE EUROPEAN DEVELOPMENT FUND ,

19 SINCE THE PROBLEMS RAISED BY THE APPLICATION ARE IN ALL RESPECTS NOVEL , IT IS APPROPRIATE FIRST OF ALL TO DEFINE THE LEGAL CONTEXT IN WHICH THEY ARISE . IT IS IN THAT LIGHT THAT THE QUESTION OF JURISDICTION WILL HAVE TO BE CONSIDERED BEFORE THE CONDITIONS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 83 OF THE RULES OF PROCEDURE CAN BE EXAMINED .

THE LEGAL CONTEXT OF THE DISPUTE

20 THE EXECUTION OF THE PROJECT WHICH HAS GIVEN RISE TO THIS DISPUTE MUST BE SEEN IN THE CONTEXT OF THE PROVISIONS ON FINANCIAL AND TECHNICAL COOPERATION WHICH FORM THE SUBJECT-MATTER OF TITLE VII ( ARTICLES 91 TO 154 ) OF THE SECOND ACP-EEC CONVENTION . THAT CONVENTION WAS DULY ENTERED INTO BY THE COMMUNITY AND MUST THEREFORE BE REGARDED AS AN INTEGRAL PART OF THE COMMUNITY LEGAL ORDER , AS THE COURT HAD OCCASION TO EMPHASIZE , IN CONNECTION WITH AN AGREEMENT CONCLUDED UNDER SIMILAR CIRCUMSTANCES , IN ITS JUDGMENT OF 30 APRIL 1974 ( CASE 181/73 HAEGEMAN V BELGIAN STATE ( 1974 ) ECR 449 ).

21 ACCORDING TO ARTICLE 95 OF THE CONVENTION , PROJECTS AND PROGRAMMES ENVISAGED BY TITLE VII ARE TO BE FINANCED BY THE EUROPEAN DEVELOPMENT FUND , THE ADMINISTRATION OF WHICH IS ENTRUSTED TO THE COMMISSION .

22 UNDER THE TERMS OF ARTICLE 108 , ' ' OPERATIONS FINANCED BY THE COMMUNITY ARE TO BE IMPLEMENTED BY THE ACP STATES AND THE COMMUNITY IN CLOSE COOPERATION , THE CONCEPT OF EQUALITY BETWEEN THE PARTIES BEING RECOGNIZED . ' ' THE SAME ARTICLE DEFINES THE RESPONSIBILITIES REGARDING THE ADMINISTRATION OF THE PROGRAMME OF FINANCIAL AND TECHNICAL COOPERATION WHICH ARE TO BE BORNE BY THE ACP STATES , THE ACP STATES AND THE COMMUNITY JOINTLY AND THE COMMUNITY . FOR THE PURPOSES OF THE PRESENT CASE IT SHOULD BE POINTED OUT IN THAT REGARD THAT :

THE ACP STATES ARE RESPONSIBLE FOR CHOOSING THE PROJECTS , FOR PRESENTING THEM FOR COMMUNITY FINANCING , FOR PREPARING , NEGOTIATING AND CONCLUDING CONTRACTS AND FOR IMPLEMENTING PROJECTS ( ARTICLE 108 ( 2 ) ( B ) ( D ) AND ( E ));

THE ACP STATES AND THE COMMUNITY ARE JOINTLY RESPONSIBLE FOR APPRAISING PROJECTS , FOR TAKING THE NECESSARY IMPLEMENTING MEASURES TO ENSURE EQUALITY OF CONDITIONS FOR PARTICIPATION IN INVITATIONS TO TENDER AND CONTRACTS AND FOR ENSURING THAT THE PROJECTS FINANCED BY THE COMMUNITY ARE EXECUTED IN ACCORDANCE WITH THE ARRANGEMENTS DECIDED UPON AND WITH THE PROVISIONS OF THE CONVENTION ( ARTICLE 108 ( 4 ) ( C ) ( D ) AND ( F ));

THE COMMUNITY IS RESPONSIBLE FOR PREPARING AND TAKING FINANCIAL DECISIONS ON PROJECTS ( ARTICLE 108 ( 5 )).

23 ARTICLES 111 , 112 AND 113 LAY DOWN DETAILED PROVISIONS CONCERNING THE APPRAISAL OF PROJECTS . ARTICLE 111 PROVIDES THAT PREPARATION OF THE DOSSIERS IS TO BE THE RESPONSIBILITY OF THE ACP STATES CONCERNED AND ARTICLE 112 PROVIDES THAT APPRAISAL OF PROJECTS IS TO BE UNDERTAKEN IN CLOSE COLLABORATION BETWEEN THE COMMUNITY AND THE ACP STATES . ARTICLE 113 ADDS THAT THE CONCLUSIONS OF THE APPRAISAL ARE TO BE SUMMARIZED IN A FINANCING PROPOSAL , WHICH IS TO SERVE AS THE BASIS FOR THE COMMISSION ' S DECISION . ACCORDING TO ARTICLE 113 ( 2 ), THE FINANCING PROPOSALS ARE TO BE DRAWN UP BY THE RELEVANT DEPARTMENTS OF THE COMMUNITY AND TRANSMITTED TO THE ACP STATES CONCERNED . ARTICLE 115 PROVIDES THAT THE FINANCING PROPOSAL IS TO BE THE SUBJECT OF A FINANCING AGREEMENT BETWEEN THE COMMISSION , ACTING ON BEHALF OF THE COMMUNITY , AND THE ACP STATE CONCERNED .

24 UNDER THE TERMS OF ARTICLE 120 , IT IS FOR THE ACP STATES TO IMPLEMENT THE PROJECTS FINANCED BY THE COMMUNITY . ACCORDINGLY THEY ARE TO BE RESPONSIBLE IN PARTICULAR FOR PREPARING , NEGOTIATING AND CONCLUDING THE NECESSARY CONTRACTS FOR THE IMPLEMENTATION OF THOSE OPERATIONS .

25 THE ADMINISTRATIVE MEASURES NECESSARY FOR THAT PURPOSE ARE THE SUBJECT OF A SET OF PRACTICAL ARRANGEMENTS PRESCRIBED IN ARTICLES 120 TO 124 OF THE CONVENTION . OF THOSE PROVISIONS THE FOLLOWING DETAILS ARE OF PARTICULAR RELEVANCE TO THE PRESENT CASE . ACCORDING TO ARTICLE 121 , THE COMMISSION IS TO APPOINT THE ' ' CHIEF AUTHORIZING OFFICER ' ' OF THE FUND , WHO IS TO ENSURE THAT FINANCING DECISIONS ARE CARRIED OUT AND IS TO BE RESPONSIBLE FOR MANAGING THE FUND ' S RESOURCES . IT IS THE CHIEF AUTHORIZING OFFICER WHO IS TO COMMIT , CLEAR AND AUTHORIZE EXPENDITURE AND KEEP THE ACCOUNTS OF COMMITMENTS AND AUTHORIZATIONS . UNDER THE TERMS OF ARTICLE 121 ( 2 ), THE CHIEF AUTHORIZING OFFICER , IN CLOSE COOPERATION WITH THE NATIONAL AUTHORIZING OFFICER , ' ' SHALL ENSURE EQUALITY OF CONDITIONS FOR PARTICIPATION IN INVITATIONS TO TENDER , AND SEE TO IT THAT THERE IS NO DISCRIMINATION AND THAT THE TENDER SELECTED IS ECONOMICALLY THE MOST ADVANTAGEOUS . IN THIS CONNECTION THE CHIEF AUTHORIZING OFFICER SHALL APPROVE THE DOSSIERS BEFORE INVITATIONS TO TENDER ARE ISSUED , RECEIVE THE RESULT OF THE EXAMINATION OF THE TENDERS AND APPROVE THE PROPOSAL FOR THE PLACING OF THE CONTRACT . ' '

ACCORDING TO ARTICLE 122 , THE GOVERNMENT OF EACH ACP STATE IS TO APPOINT A ' ' NATIONAL AUTHORIZING OFFICER ' ' TO REPRESENT THE AUTHORITIES OF HIS COUNTRY IN ALL OPERATIONS FINANCED FROM THE FUND ' S RESOURCES ADMINISTERED BY THE COMMISSION . THE NATIONAL AUTHORIZING OFFICER MAY DELEGATE SOME OF THOSE FUNCTIONS . UNDER THE TERMS OF ARTICLE 122 ( 2 ), THE NATIONAL AUTHORIZING OFFICER IS IN HIS TURN TO ENSURE , IN CLOSE COOPERATION WITH THE CHIEF AUTHORIZING OFFICER , ' ' THAT THERE IS EQUALITY OF CONDITIONS FOR PARTICIPATION IN INVITATIONS TO TENDER , THAT THERE IS NO DISCRIMINATION AND THAT THE TENDER WHICH IS ECONOMICALLY THE MOST ADVANTAGEOUS IS CHOSEN ' ' ( ARTICLE 122 ( 2 ) ( A )). HE IS TO PREPARE INVITATION TO TENDER DOSSIERS AND SUBMIT THEM TO THE DELEGATE FOR AGREEMENT BEFORE INVITATIONS TO TENDER ARE ISSUED ; HE IS TO ISSUE INVITATIONS TO TENDER , RECEIVE TENDERS , PRESIDE OVER THE EXAMINATION OF TENDERS , DECIDE THE OUTCOME OF THAT EXAMINATION AND TRANSMIT IT TO THE DELEGATE WITH A PROPOSAL FOR THE PLACING OF THE CONTRACT ; FINALLY IT IS HE WHO SIGNS THE CONTRACTS ( ARTICLE 122 ( 2 ) ( B ), ( C ), ( D ) AND ( E )).

UNDER ARTICLE 123 , THE COMMISSION IS TO APPOINT A ' ' DELEGATE ' ' TO EACH ACP STATE OR GROUP OF STATES TO REPRESENT IT FOR THE PURPOSE OF FACILITATING THE APPLICATION OF THE CONVENTION . THE DELEGATE IS TO WORK IN CLOSE COOPERATION WITH THE NATIONAL AUTHORIZING OFFICER AND DEAL WITH THAT OFFICER ON BEHALF OF THE COMMISSION . IN THAT CAPACITY HE IS TO APPROVE THE INVITATION TO TENDER DOSSIER AND BE PRESENT AT THE OPENING OF TENDERS ( ARTICLE 123 ( 2 ) ( A ) AND ( B )). HE IS TO APPROVE THE NATIONAL AUTHORIZING OFFICER ' S PROPOSAL FOR THE PLACING OF THE CONTRACT WHEREVER THE FOLLOWING THREE CONDITION ARE FULFILLED : THE TENDER SELECTED IS THE LOWEST , IT IS ECONOMICALLY THE MOST ADVANTAGEOUS AND DOES NOT EXCEED THE SUM EARMARKED FOR THE CONTRACT ( ARTICLE 123 ( 2 ) ( C )).

IT IS STRESSED IN ARTICLES 125 OF 127 THAT , AS REGARDS OPERATIONS FINANCED BY THE COMMUNITY , PARTICIPATION IN INVITATIONS TO TENDER AND CONTRACTS IS TO BE OPEN ON EQUAL TERMS TO ALL NATURAL PERSONS AND COMPANIES OR FIRMS FALLING WITHIN THE SCOPE OF THE TREATY AND TO ALL NATURAL PERSONS AND COMPANIES OR FIRMS OF THE ACP STATES AND THAT WORKS CONTRACTS FINANCED BY THE FUND ' S RESOURCES MANAGED BY THE COMMISSION ARE TO BE CONCLUDED FOLLOWING AN OPEN INVITATION TO TENDER .

29UNDER THE TERMS OF ARTICLE 130 (1), THE CRITERIA FOR SELECTING THE TENDER WHICH IS ECONOMICALLY THE MOST ADVANTAGEOUS ARE TO TAKE INTO ACCOUNT, IN RESPECT OF EACH OPERATION, INTER ALIA, 'THE QUALIFICATIONS OF AND THE GUARANTEES OFFERED BY THE TENDERERS, THE NATURE AND CONDITIONS OF IMPLEMENTATION OF THE WORKS OR SUPPLIES AND THE PRICE, OPERATING COSTS AND TECHNICAL VALUE OF THOSE WORKS OR SUPPLIES.'

30ACCORDING TO ARTICLE 131, THE GENERAL CONDITIONS APPLICABLE TO THE AWARD AND PERFORMANCE OF WORKS CONTRACTS FINANCED FROM THE FUND'S RESOURCES ADMINISTERED BY THE COMMISSION ARE CONTAINED IN THE GENERAL CONDITIONS WHICH, ON A PROPOSAL FROM THE COMMISSION, ARE TO BE ADOPTED BY DECISION OF THE COUNCIL OF MINISTERS. PENDING THAT DECISION - WHICH HAS YET NOT BEEN ADOPTED - THE JOINT DECLARATION FORMING ANNEX XII TO THE CONVENTION REFERS, IN THE CASE OF ACP STATES WHICH, LIKE ETHIOPIA, WERE NOT YET PARTIES TO THE YAOUNDE CONVENTION, TO THE 'NATIONAL LEGISLATION' OF THE STATES CONCERNED OR TO 'ESTABLISHED PRACTICES REGARDING INTERNATIONAL CONTRACTS.

31ARTICLE 132 PROVIDES AS FOLLOWS WITH REGARD TO THE SETTLEMENT OF DISPUTES: 1. ANY DISPUTE ARISING BETWEEN THE AUTHORITIES OF AN ACP STATE AND A CONTRACTOR, SUPPLIER OR PROVIDER OF SERVICES ON THE OCCASION OF THE PLACING OR PERFORMANCE OF A CONTRACT FINANCED BY THE FUND SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH RULES OF PROCEDURE ADOPTED BY THE COUNCIL OF MINISTERS.

32THE RULES OF PROCEDURE REFERRED TO ABOVE SHALL BE ADOPTED, ON A PROPOSAL, BY A DECISION OF THE COUNCIL OF MINISTERS NOT LATER THAN ITS FIRST MEETING FOLLOWING THE ENTRY INTO FORCE OF THIS CONVENTION.

32SINCE THE RULES REFERRED TO IN ARTICLE 132 HAVE NOT YET BEEN ADOPTED, REFERENCE MUST BE MADE TO ANNEX XIII OF THE CONVENTION, WHICH IS ENTITLED 'JOINT DECLARATION ON ARTICLE 132 OF THE CONVENTION' AND IS WORDED AS FOLLOWS: 'AS A TRANSITIONAL MEASURE PENDING THE IMPLEMENTATION OF THE DECISION PROVIDED FOR IN ARTICLE 132 THE FINAL DECISION ON ALL DISPUTES SHALL BE TAKEN IN ACCORDANCE WITH THE RULES ON CONCILIATION AND ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE.'

JURISDICTION OF THE COURT

33THE COMMISSION CLAIMS THAT THE COURT HAS NO JURISDICTION TO ENTERTAIN EITHER THE MAIN APPLICATION OR THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES. IT RAISES TWO FUNDAMENTAL OBJECTIONS REGARDING THE JURISDICTION OF THE COURT AND AN OBJECTION OF INADMISSIBILITY BASED ON TWO GROUNDS WITH PARTICULAR REFERENCE TO THE ACTION FOR ANNULMENT.

34IN THE FIRST PLACE, THE COMMISSION ARGUES THAT THE ACP STATE IS RESPONSIBLE FOR THE PREPARATION, NEGOTIATION AND CONCLUSION OF THE CONTRACT. IT FOLLOWS THAT IT IS THE ACP STATE AND NOT THE COMMISSION WHICH DEALS DIRECTLY WITH THE TENDERERS. WHILST IT IS TRUE THAT THE CONVENTION PROVIDES FOR COOPERATION BETWEEN THE COMMUNITY AND THE ACP STATE, THE FACT REMAINS THAT THE STATE IN QUESTION TAKES THE VARIOUS DECISIONS REQUIRED IN THE COURSE OF THE PROCEDURE, INCLUDING THE FINAL DECISION ON THE AWARD OF THE CONTRACT. THE COOPERATION TO BE GIVEN BY THE COMMISSION IN THAT CONNECTION IS THEREFORE SAID TO BE OF A PURELY 'INTERNAL' NATURE.

35IN THE SECOND PLACE, THE COMMISSION CONTENDS THAT ARTICLE 132 OF THE CONVENTION AND THE JOINT DECLARATION WHICH FORMS THE SUBJECT-MATTER OF ANNEX XIII HAVE SET UP AN ARBITRATION PROCEDURE, WITH THE RESULT THAT ANY DISPUTE BETWEEN A TENDERER AND AN ACP STATE FALLS OUTSIDE THE JURISDICTION OF THE COURT.

36WITH PARTICULAR REFERENCE TO THE ACTION FOR ANNULMENT, THE COMMISSION ARGUES THAT IN THIS CASE THERE WAS, ON ITS PART, NO DECISION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY. THE 'ORDER' TO ELIMINATE THE APPLICANTS AND TO GIVE PREFERENCE TO RUSH AND TOMPKINS BV WHICH, THE APPLICANTS ALLEGE, THE COMMISSION GAVE TO THE ETHIOPIAN AUTHORITIES AND WHICH CAME TO THE APPLICANTS' KNOWLEDGE WHEN THEY VISITED ADDIS ABABA ON 15 MARCH 1983, DID NOT, ACCORDING TO THE COMMISSION, CONSTITUTE A MEASURE WHICH COULD BE THE SUBJECT OF ANNULMENT. IN ANY EVENT, THE ACTION AGAINST THAT 'ORDER' IS OUT OF TIME SINCE THE APPLICANTS THEMSELVES STATE THAT IT CAME TO THEIR KNOWLEDGE ON 15 MARCH 1983.

37THE ANSWERS TO ALL THOSE QUESTIONS, THE COMPLEXITY OF WHICH SHOULD NOT BE UNDERESTIMATED, IS A MATTER FOR THE COURT'S DECISION ON THE SUBSTANCE OF THE MAIN APPLICATION. HOWEVER, SINCE THE PRELIMINARY OBJECTIONS RAISED BY THE COMMISSION REGARDING THE JURISDICTION OF THE COURT AND THE ADMISSIBILITY OF THE MAIN APPLICATION CONSTITUTE A PREREQUISITE FOR THE DECISION ON THE ADMISSIBILITY OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES, THE JUDGE HEARING THAT APPLICATION CANNOT ESCAPE THE NECESSITY OF RESOLVING PROVISIONALLY THE VARIOUS PROBLEMS RAISED. FROM HIS POINT OF VIEW, IT IS SUFFICIENT IF HE CAN ESTABLISH, WITH A SUFFICIENT DEGREE OF PROBABILITY, THAT THERE IS A BASIS, ALBEIT PARTIAL, ON WHICH THE COURT MAY FOUND ITS JURISDICTION IN ORDER TO ENABLE HIM TO ACKNOWLEDGE THE EXISTENCE OF A LEGITIMATE INTEREST IN THE ADOPTION OF INTERIM MEASURES DESIGNED TO PRESERVE THE EXISTING POSITION PENDING A DECISION ON THE SUBSTANCE OF THE CASE.

38SUBJECT TO THOSE RESERVATIONS, THE FOLLOWING OBSERVATIONS MAY BE MADE WITH REGARD TO THE PRELIMINARY OBJECTIONS RAISED BY THE COMMISSION.

39AS THE COMMISSION RIGHTLY POINTED OUT, THE TENDERERS ESTABLISHED A LEGAL RELATIONSHIP SOLELY WITH THE ETHIOPIAN NATIONAL AUTHORITY AND MORE PARTICULARLY WITH THE NATIONAL AUTHORIZING OFFICER, WHO, ACCORDING TO THE INFORMATION SUPPLIED DURING THE PROCEEDINGS, IS THE ETHIOPIAN GOVERNMENT ACTING, FOR THE PURPOSES OF THE PRESENT PROJECT, THROUGH THE INTERMEDIARY OF EELPA, UNDER THE TERMS OF CLAUSE IT-I, PARAGRAPH (2), OF THE CONDITIONS OF TENDER.

40NEVERTHELESS THE PROVISIONS OF THE CONVENTION AT THE SAME TIME IMPOSE SPECIFIC OBLIGATIONS ON THE COMMISSION AND MORE PARTICULARLY ON THE CHIEF AUTHORIZING OFFICER WITH REGARD TO ENSURING EQUALITY OF CONDITIONS FOR PARTICIPATION IN INVITATIONS TO TENDER, THE ELIMINATION OF DISCRIMINATION, SELECTION OF THE TENDER WHICH IS ECONOMICALLY THE MOST ADVANTAGEOUS, THE OPEN NATURE OF TENDERS AND THE PARTICIPATION ON EQUAL TERMS OF ALL NATURAL PERSONS AND COMPANIES OR FIRMS FALLING WITHIN THE SCOPE OF THE EEC TREATY.

41IT IS IMPOSSIBLE THEREFORE TO ACCEPT THE VIEW THAT, BY PARTICIPATING IN A TENDER ORGANIZED, UNDER THE TERMS OF THE CONVENTION, BY AN ACP STATE, IN CLOSE COOPERATION WITH THE COMMUNITY INSTITUTIONS, WITH A VIEW TO THE EXECUTION OF A PROJECT FINANCED ENTIRELY BY THE EUROPEAN DEVELOPMENT FUND, AN UNDERTAKING ESTABLISHED IN THE COMMUNITY IS AUTOMATICALLY PLACED OUTSIDE THE JUDICIAL PROTECTION AFFORDED TO IT BY THE PROVISIONS OF THE EEC TREATY.

42IT DOES NOT APPEAR THAT ARTICLE 132, CONCERNING THE SETTLEMENT OF DISPUTES, AND THE JOINT DECLARATION ON THAT SUBJECT, EMBODIED IN ANNEX XIII TO THE CONVENTION, HAS THE EFFECT OF ELIMINATING ANY JUDICIAL PROTECTION WITH MAY BE AVAILABLE UNDER THE TREATY. AS THE COMMISSION HAS ACKNOWLEDGED, THE CONVENTION COULD NOT DEROGATE, AS FAR AS COMMUNITY SUBJECTS ARE CONCERNED, FROM THE PROVISIONS OF THE EEC TREATY GOVERNING ACCESS TO THE COURT. MOREOVER, IT WAS APPARENT FROM THE ARGUMENTS OF THE PARTIES THAT IT REMAINS DOUBTFUL WHETHER ARTICLE 132 APPLIES ONLY TO DISPUTES WHICH MAY ARISE, ON THE OCCASION OF THE PLACING OR PERFORMANCE OF A CONTRACT, BETWEEN THE ACP STATE AND THE UNDERTAKING WHICH IS AWARDED THE CONTRACT OR WHETHER THAT PROVISION IS ALSO APPLICABLE TO DISPUTES WHICH ARISE BETWEEN THE ACP STATE AND ANY UNDERTAKING WHICH IS NOT AWARDED THE CONTRACT BUT HAS PARTICIPATED IN THE TENDER PROCEDURE. THAT DOUBT IS INCREASED BY THE UNCERTAINTY REGARDING THE INTERPRETATION WHICH THE ACP STATES, AND ETHIOPIA IN PARTICULAR, MAY GIVE TO THE TERMS OF ARTICLE 132 AND ANNEX XIII.

43MOREOVER, THE QUESTION ARISES WHETHER, IN ARBITRATION PROCEEDINGS INITIATED PURSUANT TO ARTICLE 132 AND ANNEX XIII, THAT IS TO SAY WITHIN THE FRAMEWORK OF THE PROCEDURE FOR CONCILIATION AND ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE, ACTS OF THE COMMISSION MAY BE CHALLENGED AND WHETHER AN ARBITRAL DECISION TO BE GIVEN IN THAT CONTEXT MAY CONTAIN A JUDGMENT ON THE VALIDITY OF ACTS OF THE COMMISSION OR ESTABLISH A BASIS FOR COMMUNITY LIABILITY.

44CONSEQUENTLY, WHILST IT SEEMS CERTAIN THAT THE CONTRACT CONCLUDED BETWEEN THE ACP STATE AND THE SUCCESSFUL TENDERER FALLS OUTSIDE THE JURISDICTION OF THE COURT, THAT DOES NOT MEAN THAT THERE CAN BE NO JUDICIAL REVIEW UNDER THE EEC TREATY OF ACTS OF THE COMMISSION IN THE CONTEXT OF THE TENDER PROCEDURE SET UP BY THE CONVENTION.

45AS REGARDS THE OBJECTION OF INADMISSIBILITY RAISED BY THE COMMISSION IN RELATION TO THE ACTION FOR ANNULMENT, IN VIEW OF THE FACT THAT IT WOULD BE IMPOSSIBLE TO IDENTIFY, IN THE COOPERATIVE DECISION-MAKING PROCESS SET UP BY THE CONVENTION, A DECISION OF THE COMMISSION WHICH COULD BE THE SUBJECT OF AN ACTION, IT SHOULD BE OBSERVED THAT THE FUNCTIONS PERFORMED BY THE COMMISSION IN CONNECTION WITH THE VARIOUS STAGES OF THE PREPARATION OF PROJECTS AND WITH PUTTING THOSE PROJECTS OUT TO TENDER ARE UNDOUBTEDLY CLOSELY LINKED TO THE ACTS OF THE ACP STATE BENEFITING FROM THEM. NEVERTHELESS, ON THE ONE HAND, ALL THE DECISIVE OPERATIONS RELATING TO THE AWARD OF THE CONTRACT ARE SUBJECT TO THE APPROVAL OF THE COMMISSION AND, ON THE OTHER HAND, THE COMMISSION, IN ITS CAPACITY AS MANAGER OF THE EUROPEAN DEVELOPMENT FUND, RETAINS CONTROL OVER THE ALLOCATION AND TRANSFER OF FUNDS EARMARKED FOR THE EXECUTION OF THE VARIOUS PROJECTS UNTIL SUCH TIME AS THEY ARE USED.

46ALTHOUGH IT HAS NOT BEEN POSSIBLE AT THIS STAGE TO ESTABLISH WHETHER THERE WAS AN 'ORDER' BY THE COMMISSION TO ELIMINATE THE APPLICANTS AND TO GIVE RUSH AND TOMPKINS BV PREFERENCE OVER THEM, IT IS CLEAR FROM THE INFORMATION SUPPLIED BY THE COMMISSION ITSELF THAT THE CONTRACT CONCLUDED WITH RUSH AND TOMPKINS BV ON 6 JULY 1983 BECAME EFFECTIVE ONLY BY VIRTUE OF THE APPROVAL OF THE CHIEF AUTHORIZING OFFICER AND THE ENDORSEMENT OF THE LOCAL COMMISSION DELEGATE.

47UNDER THOSE CIRCUMSTANCES, IT CANNOT BE EXCLUDED THAT A THOROUGH EXAMINATION MIGHT REVEAL THE EXISTENCE OF AN ACT OF THE COMMISSION WHICH CAN BE ISOLATED FROM ITS CONTEXT AND WHICH MAY BE OF SUCH A NATURE AS TO ENABLE AN ACTION TO BE BROUGHT FOR ITS ANNULMENT.

48THE COMMISSION'S OBJECTION THAT THE ACTION IS OUT OF TIME MUST BE REJECTED. THE APPLICANTS HAVE EXPLAINED AT GREAT LENGTH THE DIFFICULTIES WHICH THEY EXPERIENCED IN OBTAINING INFORMATION REGARDING THE ATTITUDE TAKEN BY THE COMMISSION IN THIS CASE AND THE REASONS FOR THEIR ELIMINATION. THE INFORMATION WHICH THEY WERE ABLE TO OBTAIN IN ADDIS ABABA ON 15 MAY 1983 WAS NO MORE THAN HEARSAY. SUCH INFORMATION CANNOT THEREFORE BE REGARDED AS FULFILLING THE CONDITION LAID DOWN BY THE THIRD PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY.

49IT FOLLOWS FROM THE FOREGOING THAT, ALTHOUGH THE PLACING OF THE PUBLIC WORKS CONTRACT IN QUESTION OCCURRED OUTSIDE THE SPHERE OF JURISDICTION OF THE COMMUNITY, THERE ARE NEVERTHELESS SUFFICIENT CONNECTING FACTORS BETWEEN THE CIRCUMSTANCES OF THE DISPUTE AND THE PROVISIONS OF THE TREATY GOVERNING ACCESS TO THE COURT - NAMELY, THE ACTIVE PARTICIPATION OF THE COMMISSION IN THE PROCESS FOR REACHING A DECISION ON THE AWARD OF THE CONTRACT, THE FINANCING OF THE PROJECT IN QUESTION BY THE EUROPEAN DEVELOPMENT FUND AND THE JUDICIAL PROTECTION TO WHICH THE APPLICANTS ARE, AS COMMUNITY SUBJECTS, ENTITLED TO CLAIM IN THE IMPLEMENTATION OF A CONVENTION CONCLUDED BY THE COMMUNITY - TO ALLOW THE FINDING THAT THERE EXISTS A LEGITIMATE INTEREST IN THE ADOPTION OF INTERIM MEASURES PENDING THE COURT'S DECISION ON THE QUESTIONS OF JURISDICTION AND ADMISSIBILITY RAISED BY THE COMMISSION.

URGENCY

50THE APPLICANTS CLAIM THAT AN INTERIM DECISION OF THE COURT IS REQUIRED AS A MATTER OF URGENCY OWING TO THE IRREPARABLE DAMAGE WHICH WOULD BE CAUSED TO THEIR CORPORATE REPUTATION IN THE INTERNATIONAL TENDER MARKET IF THEY WERE ELIMINATED IN SPITE OF THEIR STATUS AS 'LOWEST QUALIFIED TENDERER' IN THE TENDER PROCEDURE IN QUESTION, PARTICULARLY SINCE IT HAS RECEIVED WIDE INTERNATIONAL PUBLICITY. ONLY THE INTERVENTION OF THE COURT AT THIS STAGE COULD PREVENT DAMAGE WHICH OTHERWISE WOULD BE IRREVERSIBLE FOR THEM.

51THE APPLICANTS ARE MISTAKEN IN THINKING THAT IN THE CIRCUMSTANCES THEIR ELIMINATION WOULD DAMAGE THEIR REPUTATION. PARTICIPATION IN A PUBLIC TENDER PROCEDURE, BY NATURE HIGHLY COMPETITIVE, INVOLVES RISKS FOR ALL THE PARTICIPANTS AND THE ELIMINATION OF A TENDERER UNDER THE TENDER RULES IS NOT IN ITSELF IN ANY WAY PREJUDICIAL. THAT IS ALL THE MORE TRUE SINCE THE APPLICANTS' TENDER WAS NOT THE LOWEST AND SINCE THE FAVOURABLE PROSPECTS WHICH SEEMED TO BE EMERGING AT THE BEGINNING OF THE PROCEDURE FOR THE AWARD OF THE CONTRACT WERE DUE NOT TO THE CHARACTERISTICS OF THEIR TENDER BUT TO THE FACT THAT THERE WAS SOME DOUBT AT THAT TIME CONCERNING THE QUALIFICATIONS OF A COMPETING TENDERER.

52ON THE OTHER HAND, IT MUST BE ACKNOWLEDGED THAT THE APPLICANTS HAVE A LEGITIMATE INTEREST IN SEEKING THE ADOPTION OF AN INTERIM MEASURE AS SOON AS POSSIBLE, IN ORDER TO PREVENT - SHOULD THE PROCEDURE FOR THE AWARD OF THE CONTRACT BE FOUND TO BE IRREGULAR - A CONTRACT FROM BEING CONCLUDED AND, SHOULD IT BE CONCLUDED, ITS PERFORMANCE FROM REACHING A STAGE AT WHICH AN IRREVERSIBLE DE FACTO SITUATION WOULD BE CREATED. IN THAT SENSE THE REQUIREMENT OF URGENCY LAID DOWN BY ARTICLE 83 OF THE RULES OF PROCEDURE MUST BE RECOGNIZED AS BEING SATISFIED.

THE NATURE OF A POSSIBLE INTERIM MEASURE AND THE GROUNDS ESTABLISHING A CASE FOR ITS ADOPTION