Keywords
Summary

Keywords

1 Non-contractual liability - Conditions - Illegality - Damage - Causal link

(EC Treaty, Art. 215, second para. (now Art. 288, second para., EC))

2 Budget of the European Communities - Financial regulation - Provisions applicable to external aid - Public procurement financed by the PHARE Programme - Respective roles of the beneficiary State and the Commission - Whether Community liability may be incurred - Possible

(EC Treaty, Arts 178 and 215, second para. (now Arts 235 EC and 288, second para., EC))

3 Budget of the European Communities - Financial regulation - Provisions applicable to external aid - Public procurement financed by the PHARE programme - Principle of sound administration - Meaning - Rights of defence of the undertakings concerned - Scope

4 European Community public procurement contracts - Contract awarded on the basis of an invitation to tender - Discretion of the institutions

Summary

1 In order for the Community to incur non-contractual liability, a number of conditions must be met: the conduct of the Community institutions in question must be unlawful; there must be real and certain damage; and a direct causal link must exist between the conduct of the institution concerned and the alleged damage.

2 Contracts financed by the PHARE Programme must be regarded as national contracts which are binding only on the beneficiary State and the economic operator. On the other hand, responsibility for funding projects is entrusted to the Commission. It would therefore be wrong to dismiss the possibility of an action for damages against the Commission, since its acts or conduct in connection with the allocation or implementation of projects funded under the PHARE Programme may cause damage to third parties.

3 If the Commission is to comply with the principle of sound administration in the implementation of actions conducted in the context of the PHARE Programme, it must, when taking a decision which may have serious financial consequences for certain individuals, check all information which might have a bearing on the result.

Even if the legislation applicable to public procurement financed under the PHARE Programme does not give tenderers the right to be heard by the Commission before steps are taken to ensure that the resources for PHARE projects are economically managed, respect for the rights of the defence in any proceeding initiated against a person and liable to culminate in a measure adversely affecting that person is a fundamental principle of Community law which must be guaranteed, even in the absence of any specific rules concerning the proceeding in question. That principle requires that any person who may be adversely affected by the adoption of a decision should be placed in a position in which he may effectively make known his views on the evidence against him which the Commission has taken as the basis for its decision.

4 In a public tendering system such as the PHARE Programme, the contracting authority has a broad discretion in deciding to award a contract. Consequently, a tenderer cannot be certain of securing the contract, even if he is proposed by the evaluation committee or, a fortiori, by virtue of the mere fact that he has submitted a tender or shown some interest.