Case T‑411/06

Sogelma – Societá generale lavori manutenzioni appalti Srl

v

European Agency for Reconstruction (EAR)

(Public works contracts – Tender procedure of the European Agency for Reconstruction – Decision to cancel tender procedure and to publish a new procedure – Action for annulment – Jurisdiction of the Court of First Instance – Necessity for a prior administrative complaint – Time-limit for bringing proceedings – Instructions to act as agent – Obligation to state the reasons on which the decision is based – Application for damages)

Summary of the Judgment

1.      Community law – Principles – Right to effective judicial protection

2.      Actions for annulment – Actionable measures – Measures producing binding legal effects – Measures adopted by the European Agency for Reconstruction under powers delegated by the Commission

(Art. 230 EC; Council Regulations No 2666/2000, Art. 1, and No 2667/2000, Art. 1(2) and (3))

3.      Procedure – Admissibility of actions

(Council Regulation No 2667/2000, Arts 1, 2, 13(2) and 13a(3))

4.      Actions for annulment – Time-limits – Point from which time starts to run

(Art. 230, fifth para., EC)

5.      Actions for annulment – Actionable measures – Measures producing binding legal effects

6.      Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link

(Art. 288, second para., EC)

7.      Procedure – Measures of inquiry – Request for production of documents

1.      The European Community is a community based on the rule of law, and the Treaty has established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions. The general scheme of the Treaty is to make a direct action available against all measures adopted by the institutions which are intended to have legal effects. The general principle to be elicited is that any act of a Community body intended to produce legal effects vis-à-vis third parties must be open to judicial review.

Accordingly, it cannot be acceptable that measures intended to produce legal effects vis-à-vis third parties which are adopted by bodies established on the basis of secondary legislation such as the European Agency for Reconstruction escape judicial review.

(see paras 36-37)

2.      The cancellation of a tender procedure is an act which, as a general rule, may be the subject of an action under Article 230 EC. It is an act which adversely affects the tenderers and brings about a distinct change in their legal position, since the result is that they can no longer expect to be awarded the contract for which they had submitted a tender.

Under Articles 1 and 2 of Regulation No 2667/2000 on the European Agency for Reconstruction (EAR), as amended, the Commission may delegate to the EAR implementation of the Community assistance to Serbia and Montenegro provided for in Article 1 of Regulation No 2666/2000 on assistance for Albania, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia. Under Article 2(1)(c) of Regulation No 2667/2000 the Commission may make the EAR responsible for all operations required to implement programmes for the reconstruction of Serbia and Montenegro, including preparing and evaluating invitations to tender and awarding contracts.

Decisions which the Commission would have taken cannot cease to be acts open to challenge solely because the Commission has delegated powers to the EAR, otherwise there would be a legal vacuum. It follows that decisions taken by the EAR in the context of public procurement procedures and intended to produce legal effects vis-à-vis third parties are acts open to challenge before the Community judicature.

(see paras 38-40, 43)

3.      As a general rule, actions must be directed against the body which enacted the contested measure, in other words, the Community institution or body from which the decision emanated.

The European Agency for Reconstruction (EAR) is a Community body endowed with legal personality and established by a regulation with the aim of implementing Community assistance, inter alia, to Serbia and Montenegro. For that purpose, Articles 1 and 2 of Regulation No 2667/2000 on the EAR, as amended, expressly permit the Commission to delegate to the EAR the implementation of that assistance, including preparing and evaluating invitations to tender and awarding contracts. The EAR therefore itself has the power, conferred on it by the Commission, to implement programmes of Community assistance.

Since, by virtue of the powers delegated by the Commission in accordance with Regulation No 2667/2000, it is the EAR which took the contested decision to cancel a tender procedure, and since the Commission played no part in the decision‑making process, the EAR is the body which enacted the contested measure. Consequently, the applicant may institute proceedings before the Court of First Instance against the EAR in that capacity.

Furthermore, it is clear from Article 13(2) and from Article 13a of that regulation that it is for the EAR to defend itself in a court of law in disputes relating to whether it has incurred non-contractual liability and in disputes relating to decisions which it has taken pursuant to Article 8 of Regulation No 1049/2001. In those circumstances, it cannot be considered that other decisions taken by the EAR ought not also to be defended in a court of law by the EAR.

(see paras 49-53)

4.      If the date of notification of a decision cannot be established with certainty, the applicant is accorded the benefit of the doubt which results and his application is regarded as having been lodged within the prescribed period if, in the light of the facts, it does not appear absolutely impossible that the letter notifying the decision arrived so late that the time-limit was complied with. Similarly, the applicant is accorded the benefit of the doubt if it is not a matter of determining the date of notification, but the date on which the applicant became aware of the act. It is for the party pleading that the action is out of time to provide evidence of the date on which the event causing time to begin to run occurred.

Sending an email does not guarantee that it is actually received by the person to whom it is addressed. An email may not reach him for technical reasons. Even if the sender did not receive a ‘not received’ message, that does not necessarily mean that the email did actually reach the person to whom it was addressed. Furthermore, even where an email actually reaches the person to whom it is addressed, it may not be received on the day on which it was sent. If the sender of an email who does not receive any confirmation of receipt takes no further action, he is normally not able to prove that that email was received and, when necessary, on which date.

(see paras 75-78)

5.      Only a measure whose legal effects are binding on the applicant and are capable of affecting his interests by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 230 EC. As a general rule, a decision to organise a tender procedure has no adverse effects, since it does no more than give to interested parties the possibility of taking part in the procedure and submitting a tender.

(see paras 85-86)

6.      For the Community to incur non-contractual liability within the meaning of the second paragraph of Article 288 EC, a series of conditions must be met, namely the conduct of which the institutions are accused must have been unlawful, the damage must be real and a causal connection must exist between that conduct and the damage in question.

In so far as those three conditions governing liability must be satisfied cumulatively, the fact that one of them has not been satisfied is a sufficient basis on which to dismiss an action for damages.

In that regard, in relation to a decision by the European Agency for Reconstruction (EAR) to cancel a tender procedure in respect of a works contract, the mere fact that more than six months elapsed between the sending of the last request for clarification to the tenderers and the notification of the decision to cancel the tender procedure cannot be characterised as unlawful conduct on the part of the EAR. Moreover, there can be no causal link between the time taken by the EAR to take and give notice of the decision to cancel the tender procedure and the expenses incurred by a tenderer in order to frame its tender.

(see paras 146-147, 149-150)

7.      To enable the Court to determine whether it is conducive to the proper conduct of the procedure to order the production of certain documents, the party requesting production must identify the documents requested and provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings.

An application for the production of all the documents relating to an award procedure is equivalent to a request for the production of the internal file. An examination by the Community judicature of the internal file of a Community body with a view to verifying whether that body’s decision was influenced by factors other than those indicated in the statement of the reasons is an exceptional measure of inquiry. Such a measure presupposes that the circumstances surrounding the decision in question give rise to serious doubts as to the real reasons and in particular, to suspicions that those reasons were extraneous to the objectives of Community law and hence amounted to a misuse of powers.

(see paras 152, 157)