Keywords
Summary

Keywords

1. Non-contractual liability — Conditions — Lawfulness — Fact that the Commission did not initiate infringement proceedings — Not unlawful — Claim for compensation — Inadmissible — (Arts 226 EC and 288, second para., EC)

2. Actions for failure to fulfil obligations — Commission ' s right of action — Exercise of its discretion — Procedural position of parties who have submitted a complaint different from that in competition matters — (Art. 226 EC; Council Regulation No 17)

3. Approximation of laws — Review procedures relating to the award of public supply and public works contracts — Directive 89/665 — Procedure enabling the Commission to act where there has been a clear and manifest infringement of the Community rules on public procurement — Unrelated to the infringement procedure under Article 226 EC — Commission ' s choice not to make use of the procedure — Not unlawful — (Art. 226 EC; Council Directive 89/665, Art. 3)

4. Actions for annulment — Jurisdiction of the Community judicature — Unlimited jurisdiction — Issue of directions to an institution — Not permissible — (Art. 230 EC)

Summary

1. Since the Commission is not bound to commence infringement proceedings under Article 226 EC its decision not to institute such proceedings is not in any event unlawful, so that it cannot give rise to non-contractual liability on the part of the Community and the only conduct which might possibly be adduced as the source of damage is the conduct of the Member State concerned. Consequently, a claim for compensation based on the Commission ' s decision not to commence infringement proceedings against a Member State is inadmissible.

see paras 43-44

2. The procedural position of parties who have submitted a complaint to the Commission is fundamentally different in the case of a procedure under Article 226 EC from their position in the case of a proceeding under Regulation No 17.

The Commission is not bound to initiate a procedure under Article 226 EC but has a discretion which excludes the right for individuals to require it to adopt a specific position. It follows that, in the case of such a procedure, it is not open to persons who have lodged a complaint to bring an action before the Community judicature against a decision to take no further action on their complaint; nor do they have any procedural rights, comparable to those they may have in the case of a procedure under Regulation No 17, enabling them to require the Commission to inform them and to grant them a hearing.

see para. 46

3. Article 3 of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts provides that the Commission may invoke the procedure for which the following paragraphs of that article provide when, prior to a contract being concluded, it considers that a clear and manifest infringement of Community provisions in the field of public procurement has been committed during a contract award procedure falling within the scope of Directive 93/37 concerning the coordination of procedures for the award of public works contracts.

The clear wording of that provision, which neither derogates from nor replaces Article 226 EC, shows that only the Commission is allowed to use the procedure for which it provides. Since the choice not to make use of such power is not unlawful, it cannot give rise to non-contractual liability on the part of the Community. In fact, even when called on to use it the Commission retains the option of considering the complaint referred to it under Article 226 EC.

see paras 49-50

4. The Community judicature may not give directions to a Community institution without encroaching upon the powers of the administration. That principle not only renders inadmissible, in an action for annulment, heads of claim seeking an order requiring a defendant institution to adopt the measures necessary for the enforcement of a judgment by which a decision is annulled, but it is also applicable, in principle, in proceedings in which the Court has unlimited jurisdiction.

see para. 53