Case T‑395/11

Elti d.o.o.

v

Delegation of the European Union to Montenegro

(Actions for annulment — Public supply contracts — Tender procedure — Digitalisation of Montenegrin Public Broadcasting — Decision awarding the contract taken by the Delegation of the European Union to Montenegro — No legal capacity to be a defendant — Inadmissibility)

Summary of the Order

Actions for annulment — Capacity to act as a defendant — Union delegation — No status as a body, office or agency of the European Union — Measures adopted by the head of delegation of the European Union in a public procurement procedure — Measures attributable to the Commission — Application inadmissible

(Arts 221 TFEU and 263 TFEU; Council Regulation No 1605/2002, Arts 51, second para., 59, 60a and 85; Council Decision 2010/427)

It follows from Article 221 TFEU, from Decision 2010/427 establishing the organisation and functioning of the European External Action Service (EEAS) and from the second paragraph of Article 51, Articles 60a and 85 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, that the legal status of the Union Delegations is characterised by a two-fold organic and functional dependence with respect to the EEAS and the Commission, which precludes their being considered a body for the purposes of Article 263 TFEU.

Measures adopted pursuant to delegated powers are normally attributed to the delegating institution, on which it falls to defend the measure in question before the courts. This outcome holds all the more true for signature by delegation and in a scenario of sub-delegation. The measures adopted by the head of a delegation of the European Union, acting in his capacity as sub-delegated authorising officer of the Commission, in a public procurement procedure, do not confer capacity on that delegation to act as a defendant in legal proceedings and are, in that case, attributable to the Commission.

It follows that a delegation of the European Union cannot be considered a body, office or agency of the European Union and be recognised as having capacity to act as a defendant in legal proceedings, and that an action brought against such a delegation is inadmissible.

(see paras 46, 62-64, 73, 74)