Keywords
Summary

Keywords

1 Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Commission decision amending, after the award of supply contracts for food aid, the form of payment for successful tenderers - Action brought by an unsuccessful tenderer - Admissible

(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230, fourth para., EC))

2 Actions for annulment - Action seeking annulment of a decision confirming an earlier decision not contested in good time - Inadmissible - Meaning of a `confirmatory' decision - Where a decision is adopted after reconsideration of an earlier decision and on the basis of new evidence - Not a confirmatory decision

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC))

3 Actions for annulment - Interest in bringing proceedings - Action contesting a decision which has been implemented - Action brought by a tenderer contesting the award to competitors of a contract which has been implemented in full - Admissible

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC))

4 Agriculture - Common agricultural policy - Food aid - Programmes for the free supply of agricultural products intended for the people of Armenia and Azerbaijan - Regulation No 228/96 - Contract award procedure - Principles of the equal treatment of tenderers and of transparency - Scope - Amendment by the contracting authority of one of the conditions in the notice of invitation to tender - Breach

(Commission Regulation No 228/96)

5 Actions for annulment - Time-limits - Point from which time starts to run - Date on which the measure came to the applicant's knowledge - Obligation on learning of the existence of the measure to request the whole text thereof within a reasonable period

(EC Treaty, Art. 173, fifth para. (now, after amendment, Art. 230, fifth para., EC))

Summary

1 Persons other than those to whom a decision is addressed may claim to be individually concerned, for the purposes of the fourth paragraph of Article 173 of the Treaty (now, after amendment, Article 230, fourth paragraph, EC), only if the decision at issue affects them by reason of certain attributes peculiar to them or by reason of factual circumstances in which they are distinguished from all other persons, and by virtue of those factors distinguishes them individually in the same way as the person addressed.

A decision adopted in implementation of a food aid programme, by which the Commission provides that peaches are to be substituted for the apples and oranges initially provided for in the notice of invitation to tender as the means of paying successful tenderers, and which amends the coefficients of equivalence as between those products, established in an earlier decision, must be regarded as an independent decision - distinct from that earlier decision - which amends the conditions of the invitation to tender. Such a decision is of individual concern, within the meaning of the fourth paragraph of Article 173 of the Treaty, to an unsuccessful tenderer. Such a tenderer is not individually concerned merely by the Commission decision which determines the fate, be it favourable or unfavourable, of each of the tenders submitted in answer to the notice of invitation to tender. It also retains an individual interest in ensuring that the conditions of the notice of invitation to tender are complied with at the stage when the award itself is implemented.

2 A decision adopted by the Commission in implementation of a food aid programme by means of a tendering procedure, following reconsideration of an earlier decision, cannot be regarded as a measure which is merely confirmatory of the earlier decision, where the new decision lays down different conditions in the invitation to tender and is based on new evidence. An action for annulment of that decision cannot be declared inadmissible, therefore, on the ground that the earlier decision was not contested in good time.

3 Even where a decision to award a contract has been fully implemented for the benefit of other competitors, a tenderer retains an interest in the annulment of such a decision; such interest consists either in the tenderer's being properly restored by the Commission to his original position or in prompting the Commission to make suitable amendments in the future to the system of invitations to tender if that system is found to be incompatible with certain legal requirements.

4 In the context of the tendering system for the implementation of Regulation No 228/96 on the supply of fruit juice and fruit jams intended for the people of Armenia and Azerbaijan, the procedure for comparing tenders has to comply at every stage with both the principle of the equal treatment of tenderers and the principle of transparency so as to afford equality of opportunity to all tenderers when formulating their tenders. The contracting authority is obliged to specify clearly in the notice of invitation to tender the subject-matter and the conditions of the tendering procedure, and to comply strictly with the conditions laid down.

A decision by which the Commission authorises successful tenderers to take by way of payment for their supplies products other than those specified in the notice of invitation to tender, whereas that substitution was not provided for in that notice as prescribed by the Regulation, and which fixes coefficients of equivalence in relation to those products by reference to circumstances arising after the award infringes the notice of invitation to tender and also the principles of transparency and equal treatment.

5 The point from which time starts to run for the purposes of bringing an action for annulment cannot be fixed at the date on which the applicant claims to have had sight of the full text of the contested decision, where it is established that the applicant already had knowledge of the existence of that measure and a reasonable period for requesting the full text thereof had long since elapsed by that date. It is for a party who has knowledge of a decision concerning it to request the whole text thereof within a reasonable period.