Keywords
Summary

Keywords

1 Budget of the European Communities - Financial Regulation - Provisions applicable to external aid - Procedure for tendering for public contracts financed under the PHARE programme - Different roles of the beneficiary country and the Commission - Powers of the beneficiary country as regards the conclusion of contracts - Commission decision rejecting a tender submitted by a tendering undertaking because it did not satisfy the conditions for Community funding - Decision severable from the contractual procedure which was to lead to the conclusion of the contract - Act capable of being the subject of an action for annulment

(EC Treaty, Art. 173, para. 4)

2 International agreements - Agreement on the European Economic Area - Temporal application - Inapplicable to legal situations arising before the agreement came into force - Procedure for awarding a public works contract opened before but closed after 1 January 1994 - Inapplicability

Summary

3 The act by which the Commission, in the context of a tendering procedure for the award of public contracts financed by the PHARE programme, informs a tendering undertaking that it is rejecting its tender on the ground that the tender does not satisfy the conditions for obtaining Community funding set out in the invitation to tender, while forming part of a contractual procedure which is to lead to the conclusion of a national contract by the beneficiary State, can be severed from that context inasmuch as, first, it is adopted by the Commission in the exercise of its own powers and, secondly, it is specifically directed to an individual undertaking, which loses any chance of actually being awarded the contract simply because that act is adopted. Accordingly, the Commission's decision to refuse the undertaking in question the benefit of Community funding in itself has binding legal effects as regards the undertaking and can therefore be the subject of an action for annulment.

4 The legal framework for the tendering procedure for the award of public contracts financed by the PHARE programme is established by the general conditions of the restricted invitation to tender. Since tenders were submitted and the competitive tender stage was definitively closed in 1993 under those general conditions, the European Economic Area Agreement, which entered into force on 1 January 1994, was not applicable ratione temporis to that procedure. That agreement cannot, without infringing the principle of legal certainty, have the effect of changing the conditions on which the invitation to tender was issued and on the basis of which the tenders were submitted, or of requiring the contract-awarding procedure to be reopened.