C-126/83

concerning, at the present stage of the proceedings, the admissibility of the application b y S T S for a declaration that the measure by w h i c h t h e r e p - resentative of t h e Commission approved the a w a r d of public w o r k s contracts

THE COURT

composed of: Lord M a c k e n z i e Stuart, President, T . K o o p m a n s , K. Bahlmann and Y. G a l m o t (Presidents of C h a m b e r s ) , P . Pescatore, G. Bosco, O . D u e , U . Everling and C . K a k o u r i s , J u d g e s ,

Advocate G e n e r a l : P . V e r L o r e n v a n T h e m a a t Registrar: H . A. R ü h i , Principal Administrator

gives the following

STS v COMMISSION

The facts of the case, the course of the Following a technical evaluation of the procedure, and the conclusions, sub- tenders carried out by the International missions and arguments of the parties Telecommunications Union in eonr may be summarized as follows: junction with the technical authorities of each of the ACP States, the SPEC decided to award the contract for the first two lots of work, relating to the I — Facts and p r o c e d u r e provision of a satellite earth station and related facilities in Kiribati and in Papua In the framework of the regional co- New Guinea, to the French undertaking operation provided for in Chapter 8 of Telspace. Title VII to the Second ACP-EEC Convention [hereinafter referred to as The relevant contracts, signed by the "the Convention"] signed at Lomé on 31 SPEC and Telspace on 13 April and 6 October 1979 and approved by Council June 1983, were approved by the Regulation No 3225/80 of 25 November Commission's delegate on 21 April and 9 1980 (Official Journal 1980, L 347, p. 1), June 1983 respectively. the Community decided to finance from the resources of the Fifth European STS Consorzio per Sistemi di Tele- Development Fund, established by the comunicazione via Satellite [hereinafter Internal Agreement of 1979 (Official referred to as "STS"] was informed by a Journal 1980, L 347, p. 210), a project telex message from the SPEC on 6 May submitted by four ACP States, Fiji, 1983 that its tender had not been Kiribati, Papua New Guinea and accepted. It brought an action, lodged at Tuvalu) for the provision in those the Court Registry on 6 July 1983, in countries of international and inter- which it claims that the Court should: regional telephone, telegraph and telex services. 1. Declare that the measure approving the award of the contracts adopted by the chief authorizing officer or by the In accordance with Article 115 of the Commission's delegate is unlawful Convention, a financing agreement for and void in so far as it adversely that project was drawn up on 10 affects the applicant, on the ground December 1982 between the Com- that it is contrary to the rules of the munity, represented by the Commission, Lomé Convention of 30 December and the ACP States referred to above, 1979 and is vitiated by abuse of represented by the South Pacific Bureau power; for Economic Cooperation, hereinafter referred to as "the SPEC". 2. Declare that the annulment of that measure entails the annulment of all Pursuant to Articles 125 and 126 of the measures adopted pursuant to it; Convention, the SPEC issued invitation to tender No 1861 (Official Journal 3. Order the Commission to produce the 1982, S 189, p. 4) in respect of four lots contested measure, which STS has not of public works. had an opportunity of seeing;

In a document lodged on 19 August In the Commission's opinion, it is 1983 the Commission requested the therefore a measure which has no Court pursuant to Article 91 of the Rules binding effects for third parties and of Procedure to decide on the ad- which cannot be declared void under missibility of the application without Article 173 of the Treaty. going into the substance of the case and to order the applicant to pay the costs. In support of that argument, the In observations lodged on 29 September Commission stresses first that under 1983 STS, replying to the objection, Articles 108 (2) (d) and 120 of the requested the Court to dismiss the Convention, responsibility for the placing objection of inadmissibility raised by the of contracts is borne by the ACP State. It Commission and to order the case to is clear from the roles of the chief auth- proceed by ordering the Commission to orizing officer of the Fund appointed by produce the contested measures and all the Commission, the national auth- the measures concerning the award of orizing officer appointed by the the contracts in question. government of each ACP State, and the Commission's delegate in each ACP Upon hearing the report of the Judge- State or group of States, as defined in Rapporteur and the views of the Articles 121, 122 and 123 of the Advocate General, the Court decided to Convention respectively, that it is the open the oral procedure on the objection ACP State which deals directly with of inadmissibility without any prepara- parties tendering for a contract, rather tory inquiry. than the Commission's representative whose intervention is confined to dealings with the national authorizing officer of the Fund. II — S u b m i s s i o n s a n d a r g u m e n t s of t h e p a r t i e s o n t h e a d m i s s i - b i l i t y of t h e a p p l i c a t i o n The Commission takes the view that its observations are confirmed by the First submission wording of Article 132 of the Con- vention, which provides that any dispute The first submission is that the measure arising between the authorities of an by which the chief authorizing officer or ACP State and a contractor, supplier or the Commission's delegate approves the provider of services on the occasion of proposal for placing the contract which the placing or performance of a contract is submitted to him by the national or is to be settled by arbitration in regional authorizing officer does not accordance with rules of procedure constitute a measure subject to review adopted by the Council of Ministers. under Article 173 of the Treaty. The Commission states that the approval Secondly, the Commission points out given by the Commission's delegate to that the contracts between the SPEC and the contract is an internal measure of Telspace provide that they are to come cooperation between the EEC and the into effect when signed by the ad-

ministration of the APC State and the that contracts are awarded fairly, and, successful tenderer, and not at the time on the other hand, its delegate who of their approval by the Commission's ensures that the funds are properly delegate. In that connection, the Com- administered. STS stresses in that regard mission draws attention to the fact that that Article 123 (2) (c) of the Con- the two contracts in question were vention provides that the Commission's signed by Telspace on 13 April 1983 and delegate is to approve the proposal for by the SPEC, representing the the placing of the contract wherever Governments of Kiribati and Papua New three conditions are fulfilled: namely, the Guinea, on 13 April and 6 June tender selected is the lowest, is

Con- parties. sequently, the decision of approval is addressed to the national authorizing In the opinion of STS, even if the officer. secondary effect of the approval given by the Commission's representative is to Secondly, the Commission notes that the permit the payment of funds, it remains measure of approval does not have any nonetheless an administrative act. immediate effect on the applicant's legal position, since it falls within the terms of It follows from the provisions of the the financial relationship between the Convention referred to above that in Community and the ACP State.

JUDGMENT OF 10. 7. 1984 — CASE 126/83

Under those of contracts and its own responsibility in circumstances, the Commission has no the implementation of financial aid from means of proving that the application is the Community. unfounded, other than to set out before the Court the entire course of the Thus the measure which directly affects contested invitation to tender. Such a the applicant's position is not the reversal of the onus of proof is approval by the Commission's represen- inconsistent with the rights of the tative of the contract between the ACP defence and with what the Court has State and the third party but the award held in that connection in particular in of that contract to a competitor. In that the judgment of 14 December 1962 in connection, the Commission stresses that Joined Cases 46 and 47/59, Meroni v the applicant seems to have shared that High Authority [1962] ECR 411. point of view inasmuch as it brought an action challenging the placing of the Since the applicant has itself admitted contracts in the ACP States in question. that its application is incomplete and has requested sufficient time to put it in STS considers that where an ad- order in accordance with Article 38 (7), ministrative measure concerns a number the Commission notes that under that of persons each of them must be able to provision the time in question is granted require its reviewal by the courts, not only if the application does not comply only in the applicant's individual and with the requirements set out in immediate interest but also in the interest paragraphs (2) to (6) of Article 38 "and of all the individuals concerned in the not in circumstances such as those in this legality of measures adopted by a public case, where the application does not

STS v COMMISSION

it. The applicant considers that in view refer solely to the application lodged of both that defacto impossibility and the before the Court of Justice. fact that its tender was the most advan- tageous, as has not been disputed by the Commission, it should be authorized to provide evidence of the illegality and Ill — Oral procedure abuse of power alleged at a later date. In concluding its observations, STS states At the sitting on 20 March 1984 oral that it has not brought any action against argument was presented by C. F. the SPEC in the ACP States. The Carnacini, for STS, and G. L. Camp- Commission's statement is based on an ogrande, for the Commission of the erroneous interpretation of the telex European Communities. message which the applicant sent to it on The Advocate General delivered his 9 June 1983 and in which it intended to opinion at the sitting on 22 May 1984.

Decision

1 By application lodged at the Court Registry on 6 July 1983 STS Consorzio per Sistemi di Telecomunicazione via Satellite SpA, (hereinafter referred to as "STS"), which has its registered office in Milan, Italy, brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that the measure by which the representative of the Commission approved the award to the French undertaking Telspace of two public works contracts for the provision through the Fifth European Development Fund of a satellite earth station and related facilities in Kiribati and in Papua New Guinea was void.

s On being informed on 6 May 1983 by a telex message from the SPEC that its tender had not been accepted, STS lodged an application under Article 173 of the Treaty claiming that the Court should:

Declare void, on the one hand, the measure by which the representative of the Commission approved the placing of the contracts, inasmuch as it adversely affects the applicant's rights because it infringes the rules of the Convention and is vitiated by abuse of power, and, on the other hand, all the measures which arose out of the approval of those contracts;

Order the Commission to produce the contested measure which it has been unable to see.

6 By application lodged on 19 August 1983 the Commission requested the Court to decide on the admissibility of the action pursuant to Article 91 of the Rules of Procedure without going into the substance of the case.

7 In support of that application the Commission relies upon three arguments, alleging first that the measure by which the Commission's representative approves the proposal for placing the contract which is forwarded to him by the national or regional authorizing officer is not a measure which may be challenged under Article 173 of the Treaty and secondly that even if such approval is a measure whose legality is subject to review, it is neither addressed nor of direct concern to the applicant.

STS v COMMISSION

i2 By virtue of Article 108 (5) of the Convention, however, it is the Community which is responsible for preparing and adopting financing decisions on projects and programmes. Under Article 121 of the Convention, it appoints the chief authorizing officer of the Fund, who is to ensure that all financing decisions are carried out and is responsible for managing the Fund's

JUDGMENT OF 10. 7. 1984 — CASE 126/83

resources. In order to facilitate and expedite the implementation of projects financed from the Fund's résources, the Commission appoints a delegate to represent it in each ACP State or group of ACP States.

1 3 The provisions of the Convention set out above therefore show that contracts financed by the Fund remain national contracts which the auth- orities of each ACP State have the power to prepare, negotiate and conclude. It is for the Commission, on the other hand, to adopt on behalf of the Community the financing decisions required for the implementation of the projects and programmes decided upon in agreement with the ACP States.

H Such a division of powers requires close collaboration between the Commission and the ACP State concerned in the procedure for placing public contracts financed by the Fund, and according to the general scheme of the Convention such collaboration is restricted to the two partners present at the time.

i7 It would therefore be incompatible with the sovereignty of the ACP States and the responsibilities reserved to them by the Convention for the Commission's agents to deal directly, in place of the ACP States, with under- takings submitting tenders for or awarding contracts financed by the Fund; indeed, such action would constitute interference in a sphere reserved solely to the authorities of those States.

is For their part, undertakings which submit tenders for or are awarded the contracts in question remain outside the exclusive dealings conducted on this matter between the Commission and the ACP States;.the measures adopted by the Commission's representatives in the course of the procedure for the placing or implementation of those contracts cannot be regarded as being addressed to them and they cannot claim that those measures are "of direct concern" to them within the meaning of the second paragraph of Article 173 of the EEC Treaty. Such undertakings have legal relations only with the ACP State which is responsible for the contract, and measures adopted by the representatives of the Commission cannot substitute in relation to them a Community.decision for the decision of. the ACP State, which has sole power to conclude and sign that contract.

i9 From all the considerations set out above it follows that the measure by which the Commission's representative approved the award of the contested contracts to Telspace is not of "direct" concern to STS within the meaning of the second paragraph of Article 173 of the EEC Treaty. Accordingly, the application by STS must be dismissed as inadmissible, without its being necessary to examine the other grounds of inadmissibility relied upon by the Commission.

THE COURT

hereby:

1. Dismisses the application as inadmissible.

2. Orders the applicant to pay the costs.

Mackenzie Stuart Koopmans Bahlmann Galmot

Pescatore Bosco Due Everling Kakouris