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Corte di giustizia UEsentenza

Corte di giustizia UE n. 1085/2013

ECLI:EU:C:2013:457
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

4 July 2013 ( * ) (Appeals – Instrument for Pre-[OSCURATO:PERSONA] – Public procurement – Project for the enlargement of the [OSCURATO:PERSONA] – Decision not to award the project – Application for damages for the alleged losses – National decision – No involvement by [OSCURATO:PERSONA] bodies)

[OSCURATO:PERSONA] C‑520/12 P,

APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 16 November 2012,

[OSCURATO:PERSONA] AE

, established in Chalandri (Greece), represented by A. Krystallidis, avocat, appellant, the other parties to the proceedings being:

[OSCURATO:PERSONA]

, represented by A. Aresu and F. Erlbacher, acting as Agents, with an address for service in Luxembourg, EU Delegation to [OSCURATO:PERSONA] ,

[OSCURATO:PERSONA] & [OSCURATO:PERSONA] (CFCU)

, established in Ankara ([OSCURATO:PERSONA]), defendants at first instance,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of G. Arestis, President of the [OSCURATO:PERSONA], J.‑C.

Bonichot (Rapporteur), and A. Arabadjiev, Judges, [OSCURATO:PERSONA]: M. Wathelet, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following

[OSCURATO:PERSONA]

1 By its appeal, [OSCURATO:PERSONA] AE seeks to have set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 13 September 2012 in [OSCURATO:PERSONA]369/11

[OSCURATO:PERSONA]

v [OSCURATO:PERSONA] and Others (‘the order under appeal’), by which it dismissed its action for damages for losses it alleges it suffered as a result of a decision eliminating it from a tendering procedure initiated for the award of a contract for the implementation of a regional development programme in [OSCURATO:PERSONA], instituted pursuant to [OSCURATO:PERSONA] (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-[OSCURATO:PERSONA] (IPA) (OJ 2006 L 210, p. 82).

Background to the dispute 2 The background to the dispute, as set out in paragraphs 14 to 26 of the order under appeal, may be summarised as follows. 3 [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 1085/2006, the [OSCURATO:PERSONA] is to assist the countries listed in Annexes I and II thereto in their progressive alignment with the standards and policies of the [OSCURATO:PERSONA], including where appropriate the acquis communautaire, with a view to membership. 4 [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] (EC) No 718/2007 of 12 June 2007 implementing [OSCURATO:PERSONA] (EC) No 1085/2006 (OJ 2007 L 170, p. 1) provides, under the general principles for implementation of aid, that the [OSCURATO:PERSONA] is to entrust the recipient country with the decentralised management of certain actions, whilst retaining ultimate responsibility for general budget execution.

Decentralised management is to cover at least tendering, contracting and payments. 5 [OSCURATO:PERSONA] 21(1)(f) of [OSCURATO:PERSONA] 718/2007 provides that the recipient country is to designate an operating structure by IPA component or programme, responsible for managing and implementing the aid under [OSCURATO:PERSONA] 1085/2006.

The operating structure is to be a body or a collection of bodies within the administration of the recipient country.

It is to be in charge of, inter alia, tendering procedures, grant award procedures and the ensuing contracts. 6 On 29 November 2007, the [OSCURATO:PERSONA] adopted Decision C(2007)5729 on the [OSCURATO:PERSONA] ‘[OSCURATO:PERSONA]’ for [OSCURATO:PERSONA] assistance in the context of the ‘[OSCURATO:PERSONA]’ component of the IPA in [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’). 7 On 11 July 2008, the [OSCURATO:PERSONA] concluded a [OSCURATO:PERSONA] with the Republic of [OSCURATO:PERSONA] which generally defines the rules for cooperation concerning IPA assistance (‘the [OSCURATO:PERSONA]’). [OSCURATO:PERSONA] 6 provided that it was for the Republic of [OSCURATO:PERSONA], in the event of decentralised management of the programme, to designate operation structures. 8 On 24 July 2009, the [OSCURATO:PERSONA] concluded a [OSCURATO:PERSONA] with the Republic of [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’). 9 [OSCURATO:PERSONA] 26(1) of the [OSCURATO:PERSONA], the entities constituting the operating structure of the [OSCURATO:PERSONA] are, first, the ‘Ministry of Labour and [OSCURATO:PERSONA], IPA [OSCURATO:PERSONA] (EU [OSCURATO:PERSONA])’ and, second, the [OSCURATO:PERSONA] & [OSCURATO:PERSONA] (CFCU). 10 On 21 January 2010, on the basis of [OSCURATO:PERSONA] 1085/2006, a contract notice for a service contract in [OSCURATO:PERSONA] for the enlargement of the [OSCURATO:PERSONA] to Sivas, Antakya, Batman and Van was published in the Supplement to the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (OJ S 14).

The contract in question had the objective of reinforcing the competitiveness of small and medium-sized enterprises in [OSCURATO:PERSONA].

The contracting authority designated in that contract notice was the CFCU. 11 Several tenders, including that of a consortium of which the appellant was a leading member (‘the consortium’), were submitted. 12 After the appellant had responded to a request for clarification from the CFCU, the CFCU informed it, by letter dated 11 January 2011, that the contract would be awarded to the consortium, subject to the presentation, within 15 days, of certain documents. 13 However, by letter dated 5 April 2011, the CFCU informed the appellant that, following the appellant’s letters of 11 January, 10 March and 11 March 2011, and in the light of information communicated by the EU Delegation to [OSCURATO:PERSONA], the evaluation of its offer was seemingly vitiated by a false declaration.

For that reason, the CFCU, in its capacity as the contracting authority, indicated that the contract would not be awarded to the consortium.

Procedure before the [OSCURATO:PERSONA] and the order under appeal 14 By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 5 July 2011, the applicant in those proceedings, appellant before this [OSCURATO:PERSONA], brought an action for damages to compensate for the loss it alleged it had suffered as a result of the adoption of the CFCU’s decision of 5 April 2011. 15 By separate document, lodged at the [OSCURATO:PERSONA] on 21 November 2011, the [OSCURATO:PERSONA] raised an objection of inadmissibility pursuant to [OSCURATO:PERSONA] 114(1) of the Rules of Procedure of the [OSCURATO:PERSONA]. 16 By the order under appeal, the [OSCURATO:PERSONA] dismissed the action. 17 In paragraph 38 of the order under appeal, the [OSCURATO:PERSONA] considered that the action for damages was directed jointly against the CFCU, the [OSCURATO:PERSONA] and the EU Delegation to [OSCURATO:PERSONA]. 18 Assessing of its own motion the admissibility of the action in so far as it was directed against the EU Delegation to [OSCURATO:PERSONA], the [OSCURATO:PERSONA], in paragraph 45 of the order under appeal, dismissed that part of the action as manifestly inadmissible, holding that EU delegations do not have legal personality and that, accordingly, only the [OSCURATO:PERSONA] could be held liable for the actions and omissions which could be attributed to that EU delegation in that regard. 19 Next, the [OSCURATO:PERSONA] observed that the CFCU is an authority governed by [OSCURATO:PERSONA] law and attached to the Government of the Republic of [OSCURATO:PERSONA].

Moreover, under both [OSCURATO:PERSONA] 21(1)(f) of [OSCURATO:PERSONA] 718/2007 and paragraph 6(a) of Annex A to the [OSCURATO:PERSONA], it is for the recipient country – in the present case, the Republic of [OSCURATO:PERSONA] – to name an operating structure by IPA component or programme.

Consequently, the CFCU could not be considered to be an institution or a body of the [OSCURATO:PERSONA] for the purposes of the second paragraph of [OSCURATO:PERSONA] 340 TFEU. [OSCURATO:PERSONA] went on to conclude, in paragraph 49 of the order under appeal, that it had no jurisdiction to rule on the action for damages in so far as it was directed against the CFCU. 20 After analysing the action for damages brought by the applicant before it as relating to the loss it would incur as a result of the CFCU’s letter of 5 April 2011 and ‘any subsequent decision’, the [OSCURATO:PERSONA] first considered, in paragraph 51 of the order under appeal, that in the absence of sufficient precision, the action was manifestly inadmissible in so far as it sought to obtain damages for loss resulting from ‘any subsequent decision’. 21 [OSCURATO:PERSONA], after observing in paragraph 52 of the order under appeal that public contracts awarded by non-member countries and capable of benefiting from assistance under the IPA, subject to the principle of decentralised management, remain national contracts, then analysed the CFCU’s decision of 5 April 2011 as originating from the national operating structure of the [OSCURATO:PERSONA], designated as the contracting authority, with the [OSCURATO:PERSONA] being solely competent to ascertain whether the [OSCURATO:PERSONA] project financing conditions were fulfilled. 22 Lastly, the [OSCURATO:PERSONA] concluded in paragraph 62 of the order under appeal, firstly, that the action, in so far as it was directed against the [OSCURATO:PERSONA], was inadmissible inasmuch as the [OSCURATO:PERSONA] was not the author of the letter of 5 April 2011 and, secondly, that since the CFCU’s letter of 5 April 2011 was adopted by a [OSCURATO:PERSONA] authority, it did not have jurisdiction to rule on damages for the loss which that measure might allegedly have caused to the applicant before it.

Forms of order sought 23 By its appeal, the appellant claims that the [OSCURATO:PERSONA] should: – set aside the order under appeal; – declare its action before the [OSCURATO:PERSONA] admissible; – rule on the merits of the case and uphold its application for damages for the losses sustained as a result of the decision of 5 April 2011; and – order the [OSCURATO:PERSONA] to pay the costs. 24 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] of Justice should: – dismiss the appeal; and – order the appellant to pay the costs.

Consideration of the appeal 25 The appellant puts forward three grounds in support of its appeal.

The first alleges a two-fold error in law by the [OSCURATO:PERSONA] in denying the CFCU the status of body of the [OSCURATO:PERSONA] within the meaning of [OSCURATO:PERSONA] 263 TFEU and in refusing to recognise any legal personality for the EU Delegation to [OSCURATO:PERSONA].

The second ground of appeal alleges infringement of the appellant’s right to an effective remedy and a fair trial inasmuch as the [OSCURATO:PERSONA] failed to address its arguments put forward by way of reply to the objection of inadmissibility raised by the [OSCURATO:PERSONA], as it failed to take account of its observations concerning the [OSCURATO:PERSONA] of Justice’s case-law relating to case-law on losses caused by EU officials.

The third ground of appeal alleges that the [OSCURATO:PERSONA] distorted the evidence adduced to establish that the CFCU serves the [OSCURATO:PERSONA]’s interests and that the [OSCURATO:PERSONA] is therefore liable for the implementation of projects financed by the [OSCURATO:PERSONA]. 26 [OSCURATO:PERSONA] 181 of its Rules of Procedure, where the appeal or cross-appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal or cross-appeal in whole or in part.

It is appropriate to make use of that power in this case.

Consideration of the first ground of appeal Arguments of the parties 27 In support of its first ground of appeal, the appellant argues in essence that the [OSCURATO:PERSONA] adopted an overly restrictive interpretation of the concept of [OSCURATO:PERSONA] institution and of acts of bodies of the [OSCURATO:PERSONA] within the meaning of [OSCURATO:PERSONA] 263 TFEU in refusing to see in the CFCU’s decision of 5 April 2011 and in the decision confirming that decision, taken on 3 June 2011 by the EU Delegation to [OSCURATO:PERSONA], acts of entities which must be considered to be servants of the [OSCURATO:PERSONA] working for the needs of the [OSCURATO:PERSONA] and enabling it to fulfil its purpose. 28 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] was correct in considering that the CFCU was not a body or department of the [OSCURATO:PERSONA], but an authority of the Republic of [OSCURATO:PERSONA] and that the [OSCURATO:PERSONA] delegations have no legal personality.

Findings of the [OSCURATO:PERSONA] 29 It should be observed, as a preliminary point, that in paragraph 51 of the order under appeal the [OSCURATO:PERSONA] analysed the subject matter of the application made to it as seeking damages for the loss which would result for the applicant before it not only from the CFCU’s letter of 5 April 2011 but also from ‘any subsequent decision’.

However, the [OSCURATO:PERSONA] found merely that, since no such subsequent decisions had been identified, the forms of order seeking damages arising therefrom were manifestly inadmissible. 30 The appellant does not contest that ground of inadmissibility.

Accordingly, the line of argument to the effect that the [OSCURATO:PERSONA] erred in not considering the correspondence of 3 June 2011 from the EU Delegation to [OSCURATO:PERSONA] as a legal instrument producing legal effects results from a manifestly incorrect reading of the order under appeal. 31 The appellant must also be understood as arguing that the [OSCURATO:PERSONA] erred in law in not considering the decision of 5 April 2011 as an act of the [OSCURATO:PERSONA] or, at the very least, as an act of a body of the [OSCURATO:PERSONA] within the meaning of [OSCURATO:PERSONA] 263 TFEU. 32 It should be borne in mind in that regard, firstly, that under the general principles for implementing pre-accession aid, [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] 718/2007 provides that the [OSCURATO:PERSONA] is to entrust the decentralised management for certain actions to the recipient country, whilst retaining overall final responsibility for general budget execution.

Decentralised management covers, at least, the management of tendering procedures, awards and payments.

Secondly, under [OSCURATO:PERSONA] 21(1)(f) of that regulation, the recipient country is to designate an operating structure by IPA component or programme charged with managing and implementing that aid.

The operating structure is to be a body or a collection of bodies within the administration of the recipient country, and is to be in charge of tendering procedures, granting procedures and the resulting contracts. 33 It follows both from those provisions and from the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] referred to in paragraphs 7 to 9 of the present [OSCURATO:PERSONA] that the [OSCURATO:PERSONA] and the Republic of [OSCURATO:PERSONA] intended to entrust the decentralised IPA management for [OSCURATO:PERSONA] to bodies which are part of that country’s administration and that, in that context, the CFCU was designated as the operating structure charged with the management of the tendering procedures necessary for carrying out the actions under the IPA programme. 34 Moreover, as rightly observed by the [OSCURATO:PERSONA] in paragraph 52 of the order under appeal, public contracts awarded by non-member countries and capable of benefiting from assistance under the IPA, subject to the principle of decentralised management, remain national contracts which only the national contracting authority responsible for following them through has the power to prepare, negotiate and conclude, the involvement of the [OSCURATO:PERSONA] representatives in the procedure for the award of those contracts being confined solely to establishing whether or not the conditions for [OSCURATO:PERSONA] financing are met.

Moreover, the undertakings that submit tenders which are awarded the contract in question have legal relations only with the non-member country which is responsible for the contract and the measures adopted by representatives of the [OSCURATO:PERSONA] cannot have the effect of substituting, in relation to them, a [OSCURATO:PERSONA] decision for the decision of that non-member country (see, by analogy, [OSCURATO:PERSONA] C‑257/90 Italsolar v

[OSCURATO:PERSONA]

[1993] ECR I‑9, paragraph 22). 35 In those circumstances, the [OSCURATO:PERSONA] did not err in law in holding, in paragraph 62 of the order under appeal, that the decision of 5 April 2011 by which the CFCU informed the appellant that the contract in question would not be awarded to the consortium was adopted by a national authority, responsible in its capacity as contracting authority for conducting the entire procedure for awarding that public contract. 36 This conclusion is not affected by the fact that the [OSCURATO:PERSONA] ensures compliance with the conditions for [OSCURATO:PERSONA] financing in the procedure for awarding contracts such as the one at issue in the present case.

Its competence in this area, which stems from the fact that it retains overall final responsibility for general budget execution, must never be confused with the responsibility for the operating structure, which decides on the award of the contract in question. 37 Consequently, the appellant has no grounds to argue that, in taking the decision of 5 April 2011, the CFCU acted as a servant of the [OSCURATO:PERSONA] or as a body of the [OSCURATO:PERSONA]; nor, therefore, may it infer therefrom that the [OSCURATO:PERSONA] is liable for losses allegedly caused by that decision. 38 For this reason, nor did the [OSCURATO:PERSONA] err in law in holding that the action, in so far as it was directed against the [OSCURATO:PERSONA], was inadmissible on the ground that the [OSCURATO:PERSONA] was not the author of the decision of 5 April 2011. 39 It follows from the foregoing that the appellant’s first ground of appeal is clearly unfounded.

Consideration of the second ground of appeal Arguments of the parties 40 In support of its second ground of appeal the appellant submits that, in failing to take account of its observations challenging, on the basis of the [OSCURATO:PERSONA] of Justice’s case-law on losses caused by EU officials, the objection of inadmissibility put forward by the [OSCURATO:PERSONA] before the [OSCURATO:PERSONA], it failed in its obligation to provide a statement of reasons in its order and denied the applicant before it its right to an effective remedy. 41 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] made no error of law in not taking into account the reference to such losses, since all the arguments put forward in support of the application were in essence directed against the CFCU’s decision and the applicant in those proceedings had not made out proof of the causal link between the losses it allegedly suffered and a supposedly unlawful action on the part of the EU Delegation to [OSCURATO:PERSONA].

Findings of the [OSCURATO:PERSONA] 42 According to settled case-law, the [OSCURATO:PERSONA] obligation to state reasons does not require it to address the applicants’ arguments in detail. 43 As stated in paragraph 35 of the present [OSCURATO:PERSONA], the [OSCURATO:PERSONA] did not err in law in holding that the decision of 5 April 2011 had been adopted by a national authority, responsible in its capacity as contracting authority for conducting the entire procedure for awarding the public contract in question. [OSCURATO:PERSONA] concluded, correctly, in paragraph 62 of the order under appeal, that it had no jurisdiction to rule on the issue of losses which that measure might allegedly have caused to the applicant before it, and that such losses which may have been caused by national institutions may give rise to liability only on the part of those institutions and the national courts, that is to say, in the present case, the [OSCURATO:PERSONA] courts, alone retain jurisdiction to order damages. 44 In thus setting out in a clear and exhaustive manner the reasons why, in its view, the forms of order sought by the applicant before it in fact sought damages for losses caused by national institutions, the [OSCURATO:PERSONA] – implicitly but unmistakably – rejected the arguments of the applicant before it seeking damages for losses caused by servants of the [OSCURATO:PERSONA], which were inoperative.

It did not disregard its obligation to state reasons and did not deny the applicant before it its right to an effective remedy. 45 The appellant’s second ground of appeal is therefore clearly unfounded.

Consideration of the third ground of appeal Arguments of the parties 46 In support of its third ground of appeal, the appellant submits that the [OSCURATO:PERSONA] distorted the evidence adduced before it in failing to take account of the facts which were submitted to it by the applicant before it and which established clearly that the CFCU was a servant of the [OSCURATO:PERSONA] and ‘equally liable’ to compensate for losses caused to persons who have suffered losses as a result of its action. 47 [OSCURATO:PERSONA] observes that the act which allegedly caused the appellant losses was not an act of the [OSCURATO:PERSONA], or even an act of the EU Delegation to [OSCURATO:PERSONA], but rather an act of the competent [OSCURATO:PERSONA] authority, which is why the [OSCURATO:PERSONA] was justified in holding that it had no jurisdiction to rule on the issue of damages for such losses.

Findings of the [OSCURATO:PERSONA] 48 It should be noted that it was solely on the basis of legal grounds that the [OSCURATO:PERSONA], in the light of, inter alia, the provisions of [OSCURATO:PERSONA] 718/2007, concluded, correctly and having regard to the circumstances of the case as a whole, as observed in paragraphs 32 to 35 above, that the decision of 5 April 2011 was adopted by an authority governed by [OSCURATO:PERSONA] law. 49 These considerations alone are sufficient grounds on which the order under appeal may be based.

It follows that the appellant has no grounds to argue that the evidence submitted to the [OSCURATO:PERSONA] was distorted.

The third ground of appeal must therefore also be dismissed as manifestly unfounded. 50 It follows from all the foregoing considerations that the appeal must be rejected in its entirety as manifestly inadmissible and clearly unfounded.

Costs 51 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings pursuant to [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since the [OSCURATO:PERSONA] has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders:

1. The appeal is dismissed.

2. [OSCURATO:PERSONA] AE to pay the costs. [Signatures] * Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 4 July 2013 ( * ) (Appeals – Instrument for Pre-[OSCURATO:PERSONA] – Public procurement – Project for the enlargement of the [OSCURATO:PERSONA] – Decision not to award the project – Application for damages for the alleged losses – National decision – No involvement by [OSCURATO:PERSONA] bodies) [OSCURATO:PERSONA] C‑520/12 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 16 November 2012, [OSCURATO:PERSONA] AE , established in Chalandri (Greece), represented by A. Krystallidis, avocat, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA] , represented by A. Aresu and F. Erlbacher, acting as Agents, with an address for service in Luxembourg, EU Delegation to [OSCURATO:PERSONA] , [OSCURATO:PERSONA] & [OSCURATO:PERSONA] (CFCU) , established in Ankara ([OSCURATO:PERSONA]), defendants at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of G. Arestis, President of the [OSCURATO:PERSONA], J.‑C. Bonichot (Rapporteur), and A. Arabadjiev, Judges, [OSCURATO:PERSONA]: M. Wathelet, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following [OSCURATO:PERSONA] 1 By its appeal, [OSCURATO:PERSONA] AE seeks to have set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 13 September 2012 in [OSCURATO:PERSONA]369/11 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others (‘the order under appeal’), by which it dismissed its action for damages for losses it alleges it suffered as a result of a decision eliminating it from a tendering procedure initiated for the award of a contract for the implementation of a regional development programme in [OSCURATO:PERSONA], instituted pursuant to [OSCURATO:PERSONA] (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-[OSCURATO:PERSONA] (IPA) (OJ 2006 L 210, p. 82). Background to the dispute 2 The background to the dispute, as set out in paragraphs 14 to 26 of the order under appeal, may be summarised as follows. 3 [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 1085/2006, the [OSCURATO:PERSONA] is to assist the countries listed in Annexes I and II thereto in their progressive alignment with the standards and policies of the [OSCURATO:PERSONA], including where appropriate the acquis communautaire, with a view to membership. 4 [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] (EC) No 718/2007 of 12 June 2007 implementing [OSCURATO:PERSONA] (EC) No 1085/2006 (OJ 2007 L 170, p. 1) provides, under the general principles for implementation of aid, that the [OSCURATO:PERSONA] is to entrust the recipient country with the decentralised management of certain actions, whilst retaining ultimate responsibility for general budget execution. Decentralised management is to cover at least tendering, contracting and payments. 5 [OSCURATO:PERSONA] 21(1)(f) of [OSCURATO:PERSONA] 718/2007 provides that the recipient country is to designate an operating structure by IPA component or programme, responsible for managing and implementing the aid under [OSCURATO:PERSONA] 1085/2006. The operating structure is to be a body or a collection of bodies within the administration of the recipient country. It is to be in charge of, inter alia, tendering procedures, grant award procedures and the ensuing contracts. 6 On 29 November 2007, the [OSCURATO:PERSONA] adopted Decision C(2007)5729 on the [OSCURATO:PERSONA] ‘[OSCURATO:PERSONA]’ for [OSCURATO:PERSONA] assistance in the context of the ‘[OSCURATO:PERSONA]’ component of the IPA in [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’). 7 On 11 July 2008, the [OSCURATO:PERSONA] concluded a [OSCURATO:PERSONA] with the Republic of [OSCURATO:PERSONA] which generally defines the rules for cooperation concerning IPA assistance (‘the [OSCURATO:PERSONA]’). [OSCURATO:PERSONA] 6 provided that it was for the Republic of [OSCURATO:PERSONA], in the event of decentralised management of the programme, to designate operation structures. 8 On 24 July 2009, the [OSCURATO:PERSONA] concluded a [OSCURATO:PERSONA] with the Republic of [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’). 9 [OSCURATO:PERSONA] 26(1) of the [OSCURATO:PERSONA], the entities constituting the operating structure of the [OSCURATO:PERSONA] are, first, the ‘Ministry of Labour and [OSCURATO:PERSONA], IPA [OSCURATO:PERSONA] (EU [OSCURATO:PERSONA])’ and, second, the [OSCURATO:PERSONA] & [OSCURATO:PERSONA] (CFCU). 10 On 21 January 2010, on the basis of [OSCURATO:PERSONA] 1085/2006, a contract notice for a service contract in [OSCURATO:PERSONA] for the enlargement of the [OSCURATO:PERSONA] to Sivas, Antakya, Batman and Van was published in the Supplement to the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (OJ S 14). The contract in question had the objective of reinforcing the competitiveness of small and medium-sized enterprises in [OSCURATO:PERSONA]. The contracting authority designated in that contract notice was the CFCU. 11 Several tenders, including that of a consortium of which the appellant was a leading member (‘the consortium’), were submitted. 12 After the appellant had responded to a request for clarification from the CFCU, the CFCU informed it, by letter dated 11 January 2011, that the contract would be awarded to the consortium, subject to the presentation, within 15 days, of certain documents. 13 However, by letter dated 5 April 2011, the CFCU informed the appellant that, following the appellant’s letters of 11 January, 10 March and 11 March 2011, and in the light of information communicated by the EU Delegation to [OSCURATO:PERSONA], the evaluation of its offer was seemingly vitiated by a false declaration. For that reason, the CFCU, in its capacity as the contracting authority, indicated that the contract would not be awarded to the consortium. Procedure before the [OSCURATO:PERSONA] and the order under appeal 14 By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 5 July 2011, the applicant in those proceedings, appellant before this [OSCURATO:PERSONA], brought an action for damages to compensate for the loss it alleged it had suffered as a result of the adoption of the CFCU’s decision of 5 April 2011. 15 By separate document, lodged at the [OSCURATO:PERSONA] on 21 November 2011, the [OSCURATO:PERSONA] raised an objection of inadmissibility pursuant to [OSCURATO:PERSONA] 114(1) of the Rules of Procedure of the [OSCURATO:PERSONA]. 16 By the order under appeal, the [OSCURATO:PERSONA] dismissed the action. 17 In paragraph 38 of the order under appeal, the [OSCURATO:PERSONA] considered that the action for damages was directed jointly against the CFCU, the [OSCURATO:PERSONA] and the EU Delegation to [OSCURATO:PERSONA]. 18 Assessing of its own motion the admissibility of the action in so far as it was directed against the EU Delegation to [OSCURATO:PERSONA], the [OSCURATO:PERSONA], in paragraph 45 of the order under appeal, dismissed that part of the action as manifestly inadmissible, holding that EU delegations do not have legal personality and that, accordingly, only the [OSCURATO:PERSONA] could be held liable for the actions and omissions which could be attributed to that EU delegation in that regard. 19 Next, the [OSCURATO:PERSONA] observed that the CFCU is an authority governed by [OSCURATO:PERSONA] law and attached to the Government of the Republic of [OSCURATO:PERSONA]. Moreover, under both [OSCURATO:PERSONA] 21(1)(f) of [OSCURATO:PERSONA] 718/2007 and paragraph 6(a) of Annex A to the [OSCURATO:PERSONA], it is for the recipient country – in the present case, the Republic of [OSCURATO:PERSONA] – to name an operating structure by IPA component or programme. Consequently, the CFCU could not be considered to be an institution or a body of the [OSCURATO:PERSONA] for the purposes of the second paragraph of [OSCURATO:PERSONA] 340 TFEU. [OSCURATO:PERSONA] went on to conclude, in paragraph 49 of the order under appeal, that it had no jurisdiction to rule on the action for damages in so far as it was directed against the CFCU. 20 After analysing the action for damages brought by the applicant before it as relating to the loss it would incur as a result of the CFCU’s letter of 5 April 2011 and ‘any subsequent decision’, the [OSCURATO:PERSONA] first considered, in paragraph 51 of the order under appeal, that in the absence of sufficient precision, the action was manifestly inadmissible in so far as it sought to obtain damages for loss resulting from ‘any subsequent decision’. 21 [OSCURATO:PERSONA], after observing in paragraph 52 of the order under appeal that public contracts awarded by non-member countries and capable of benefiting from assistance under the IPA, subject to the principle of decentralised management, remain national contracts, then analysed the CFCU’s decision of 5 April 2011 as originating from the national operating structure of the [OSCURATO:PERSONA], designated as the contracting authority, with the [OSCURATO:PERSONA] being solely competent to ascertain whether the [OSCURATO:PERSONA] project financing conditions were fulfilled. 22 Lastly, the [OSCURATO:PERSONA] concluded in paragraph 62 of the order under appeal, firstly, that the action, in so far as it was directed against the [OSCURATO:PERSONA], was inadmissible inasmuch as the [OSCURATO:PERSONA] was not the author of the letter of 5 April 2011 and, secondly, that since the CFCU’s letter of 5 April 2011 was adopted by a [OSCURATO:PERSONA] authority, it did not have jurisdiction to rule on damages for the loss which that measure might allegedly have caused to the applicant before it. Forms of order sought 23 By its appeal, the appellant claims that the [OSCURATO:PERSONA] should: –        set aside the order under appeal; –        declare its action before the [OSCURATO:PERSONA] admissible; –        rule on the merits of the case and uphold its application for damages for the losses sustained as a result of the decision of 5 April 2011; and –        order the [OSCURATO:PERSONA] to pay the costs. 24 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] of Justice should: –        dismiss the appeal; and –        order the appellant to pay the costs. Consideration of the appeal 25 The appellant puts forward three grounds in support of its appeal. The first alleges a two-fold error in law by the [OSCURATO:PERSONA] in denying the CFCU the status of body of the [OSCURATO:PERSONA] within the meaning of [OSCURATO:PERSONA] 263 TFEU and in refusing to recognise any legal personality for the EU Delegation to [OSCURATO:PERSONA]. The second ground of appeal alleges infringement of the appellant’s right to an effective remedy and a fair trial inasmuch as the [OSCURATO:PERSONA] failed to address its arguments put forward by way of reply to the objection of inadmissibility raised by the [OSCURATO:PERSONA], as it failed to take account of its observations concerning the [OSCURATO:PERSONA] of Justice’s case-law relating to case-law on losses caused by EU officials. The third ground of appeal alleges that the [OSCURATO:PERSONA] distorted the evidence adduced to establish that the CFCU serves the [OSCURATO:PERSONA]’s interests and that the [OSCURATO:PERSONA] is therefore liable for the implementation of projects financed by the [OSCURATO:PERSONA]. 26 [OSCURATO:PERSONA] 181 of its Rules of Procedure, where the appeal or cross-appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal or cross-appeal in whole or in part. It is appropriate to make use of that power in this case. Consideration of the first ground of appeal Arguments of the parties 27 In support of its first ground of appeal, the appellant argues in essence that the [OSCURATO:PERSONA] adopted an overly restrictive interpretation of the concept of [OSCURATO:PERSONA] institution and of acts of bodies of the [OSCURATO:PERSONA] within the meaning of [OSCURATO:PERSONA] 263 TFEU in refusing to see in the CFCU’s decision of 5 April 2011 and in the decision confirming that decision, taken on 3 June 2011 by the EU Delegation to [OSCURATO:PERSONA], acts of entities which must be considered to be servants of the [OSCURATO:PERSONA] working for the needs of the [OSCURATO:PERSONA] and enabling it to fulfil its purpose. 28 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] was correct in considering that the CFCU was not a body or department of the [OSCURATO:PERSONA], but an authority of the Republic of [OSCURATO:PERSONA] and that the [OSCURATO:PERSONA] delegations have no legal personality. Findings of the [OSCURATO:PERSONA] 29 It should be observed, as a preliminary point, that in paragraph 51 of the order under appeal the [OSCURATO:PERSONA] analysed the subject matter of the application made to it as seeking damages for the loss which would result for the applicant before it not only from the CFCU’s letter of 5 April 2011 but also from ‘any subsequent decision’. However, the [OSCURATO:PERSONA] found merely that, since no such subsequent decisions had been identified, the forms of order seeking damages arising therefrom were manifestly inadmissible. 30 The appellant does not contest that ground of inadmissibility. Accordingly, the line of argument to the effect that the [OSCURATO:PERSONA] erred in not considering the correspondence of 3 June 2011 from the EU Delegation to [OSCURATO:PERSONA] as a legal instrument producing legal effects results from a manifestly incorrect reading of the order under appeal. 31 The appellant must also be understood as arguing that the [OSCURATO:PERSONA] erred in law in not considering the decision of 5 April 2011 as an act of the [OSCURATO:PERSONA] or, at the very least, as an act of a body of the [OSCURATO:PERSONA] within the meaning of [OSCURATO:PERSONA] 263 TFEU. 32 It should be borne in mind in that regard, firstly, that under the general principles for implementing pre-accession aid, [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] 718/2007 provides that the [OSCURATO:PERSONA] is to entrust the decentralised management for certain actions to the recipient country, whilst retaining overall final responsibility for general budget execution. Decentralised management covers, at least, the management of tendering procedures, awards and payments. Secondly, under [OSCURATO:PERSONA] 21(1)(f) of that regulation, the recipient country is to designate an operating structure by IPA component or programme charged with managing and implementing that aid. The operating structure is to be a body or a collection of bodies within the administration of the recipient country, and is to be in charge of tendering procedures, granting procedures and the resulting contracts. 33 It follows both from those provisions and from the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] referred to in paragraphs 7 to 9 of the present [OSCURATO:PERSONA] that the [OSCURATO:PERSONA] and the Republic of [OSCURATO:PERSONA] intended to entrust the decentralised IPA management for [OSCURATO:PERSONA] to bodies which are part of that country’s administration and that, in that context, the CFCU was designated as the operating structure charged with the management of the tendering procedures necessary for carrying out the actions under the IPA programme. 34 Moreover, as rightly observed by the [OSCURATO:PERSONA] in paragraph 52 of the order under appeal, public contracts awarded by non-member countries and capable of benefiting from assistance under the IPA, subject to the principle of decentralised management, remain national contracts which only the national contracting authority responsible for following them through has the power to prepare, negotiate and conclude, the involvement of the [OSCURATO:PERSONA] representatives in the procedure for the award of those contracts being confined solely to establishing whether or not the conditions for [OSCURATO:PERSONA] financing are met. Moreover, the undertakings that submit tenders which are awarded the contract in question have legal relations only with the non-member country which is responsible for the contract and the measures adopted by representatives of the [OSCURATO:PERSONA] cannot have the effect of substituting, in relation to them, a [OSCURATO:PERSONA] decision for the decision of that non-member country (see, by analogy, [OSCURATO:PERSONA] C‑257/90 Italsolar v [OSCURATO:PERSONA] [1993] ECR I‑9, paragraph 22). 35 In those circumstances, the [OSCURATO:PERSONA] did not err in law in holding, in paragraph 62 of the order under appeal, that the decision of 5 April 2011 by which the CFCU informed the appellant that the contract in question would not be awarded to the consortium was adopted by a national authority, responsible in its capacity as contracting authority for conducting the entire procedure for awarding that public contract. 36 This conclusion is not affected by the fact that the [OSCURATO:PERSONA] ensures compliance with the conditions for [OSCURATO:PERSONA] financing in the procedure for awarding contracts such as the one at issue in the present case. Its competence in this area, which stems from the fact that it retains overall final responsibility for general budget execution, must never be confused with the responsibility for the operating structure, which decides on the award of the contract in question. 37 Consequently, the appellant has no grounds to argue that, in taking the decision of 5 April 2011, the CFCU acted as a servant of the [OSCURATO:PERSONA] or as a body of the [OSCURATO:PERSONA]; nor, therefore, may it infer therefrom that the [OSCURATO:PERSONA] is liable for losses allegedly caused by that decision. 38 For this reason, nor did the [OSCURATO:PERSONA] err in law in holding that the action, in so far as it was directed against the [OSCURATO:PERSONA], was inadmissible on the ground that the [OSCURATO:PERSONA] was not the author of the decision of 5 April 2011. 39 It follows from the foregoing that the appellant’s first ground of appeal is clearly unfounded. Consideration of the second ground of appeal Arguments of the parties 40 In support of its second ground of appeal the appellant submits that, in failing to take account of its observations challenging, on the basis of the [OSCURATO:PERSONA] of Justice’s case-law on losses caused by EU officials, the objection of inadmissibility put forward by the [OSCURATO:PERSONA] before the [OSCURATO:PERSONA], it failed in its obligation to provide a statement of reasons in its order and denied the applicant before it its right to an effective remedy. 41 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] made no error of law in not taking into account the reference to such losses, since all the arguments put forward in support of the application were in essence directed against the CFCU’s decision and the applicant in those proceedings had not made out proof of the causal link between the losses it allegedly suffered and a supposedly unlawful action on the part of the EU Delegation to [OSCURATO:PERSONA]. Findings of the [OSCURATO:PERSONA] 42 According to settled case-law, the [OSCURATO:PERSONA] obligation to state reasons does not require it to address the applicants’ arguments in detail. 43 As stated in paragraph 35 of the present [OSCURATO:PERSONA], the [OSCURATO:PERSONA] did not err in law in holding that the decision of 5 April 2011 had been adopted by a national authority, responsible in its capacity as contracting authority for conducting the entire procedure for awarding the public contract in question. [OSCURATO:PERSONA] concluded, correctly, in paragraph 62 of the order under appeal, that it had no jurisdiction to rule on the issue of losses which that measure might allegedly have caused to the applicant before it, and that such losses which may have been caused by national institutions may give rise to liability only on the part of those institutions and the national courts, that is to say, in the present case, the [OSCURATO:PERSONA] courts, alone retain jurisdiction to order damages. 44 In thus setting out in a clear and exhaustive manner the reasons why, in its view, the forms of order sought by the applicant before it in fact sought damages for losses caused by national institutions, the [OSCURATO:PERSONA] – implicitly but unmistakably – rejected the arguments of the applicant before it seeking damages for losses caused by servants of the [OSCURATO:PERSONA], which were inoperative. It did not disregard its obligation to state reasons and did not deny the applicant before it its right to an effective remedy. 45 The appellant’s second ground of appeal is therefore clearly unfounded. Consideration of the third ground of appeal Arguments of the parties 46 In support of its third ground of appeal, the appellant submits that the [OSCURATO:PERSONA] distorted the evidence adduced before it in failing to take account of the facts which were submitted to it by the applicant before it and which established clearly that the CFCU was a servant of the [OSCURATO:PERSONA] and ‘equally liable’ to compensate for losses caused to persons who have suffered losses as a result of its action. 47 [OSCURATO:PERSONA] observes that the act which allegedly caused the appellant losses was not an act of the [OSCURATO:PERSONA], or even an act of the EU Delegation to [OSCURATO:PERSONA], but rather an act of the competent [OSCURATO:PERSONA] authority, which is why the [OSCURATO:PERSONA] was justified in holding that it had no jurisdiction to rule on the issue of damages for such losses. Findings of the [OSCURATO:PERSONA] 48 It should be noted that it was solely on the basis of legal grounds that the [OSCURATO:PERSONA], in the light of, inter alia, the provisions of [OSCURATO:PERSONA] 718/2007, concluded, correctly and having regard to the circumstances of the case as a whole, as observed in paragraphs 32 to 35 above, that the decision of 5 April 2011 was adopted by an authority governed by [OSCURATO:PERSONA] law. 49 These considerations alone are sufficient grounds on which the order under appeal may be based. It follows that the appellant has no grounds to argue that the evidence submitted to the [OSCURATO:PERSONA] was distorted. The third ground of appeal must therefore also be dismissed as manifestly unfounded. 50 It follows from all the foregoing considerations that the appeal must be rejected in its entirety as manifestly inadmissible and clearly unfounded. Costs 51 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings pursuant to [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the [OSCURATO:PERSONA] has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] AE to pay the costs. [Signatures] * Language of the case: English.
Sentenza Corte di giustizia UE n. 1085/2013 — Fons Iuris — Fons Iuris