Court of Justice of the European Communities (including Court of First Instance Decisions)

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION - INTERIM MEASURES - CONDITIONS FOR GRANTING - EXISTENCE OF A DECISION OPEN TO CHALLENGE - MEASURES NOT PREJUDGING THE DECISION ON THE SUBSTANCE OF THE CASE
( EEC TREATY , ARTS 185 AND 186 )

IN CASE 231/86 R
BREDA-GEOMINERARIA , A JOINT VENTURE COMPOSED OF :
( I ) ISTITUTO RICERCHE BREDA SPA , WHOSE REGISTERED OFFICE IS AT 336 VIALE SARCA , MILAN ,
( II)GEOMINERARIA ITALIANA SRL , WHOSE REGISTERED OFFICE IS AT 21 VIA BOVES , BORGO SAN DALMAZZO ( CUNEO ),
REPRESENTED BY MARIO SPANDRE , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES BADEN , 8 BOULEVARD ROYAL ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , MARIE-JOSE JONCZY , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES KREMLIS , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION FOR INTERIM MEASURES PENDING THE DECISION OF THE COURT IN THE APPLICANT ' S ACTION FOR THE ANNULMENT , PURSUANT TO ARTICLE 173 OF THE EEC TREATY , OF THE COMMISSION ' S DECISION REFUSING TO RECOGNIZE THAT THE APPLICANTS ARE THE SUCCESSFUL TENDERERS FOR A CONTRACT FINANCED BY THE EUROPEAN DEVELOPMENT FUND OR , IN THE ALTERNATIVE , FOR A JUDGMENT PURSUANT TO ARTICLES 178 AND 215 OF THE EEC TREATY DECLARING THAT THE COMMISSION ' S CONDUCT WAS WRONGFUL AND ORDERING IT TO PAY DAMAGES TO THE APPLICANTS ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 26 AUGUST 1986 , BREDA-GEOMINERARIA , A JOINT VENTURE COMPOSED OF ISTITUTO RICERCHE BREDA SPA AND GEOMINERARIA ITALIANA SRL , BROUGHT AN ACTION PURSUANT TO ARTICLE 173 OF THE EEC TREATY FOR THE ANNULMENT OF THE COMMISSION ' S DECISION REFUSING TO RECOGNIZE THAT THE APPLICANTS WERE THE SUCCESSFUL TENDERERS FOR THE CONTRACT WHICH WAS THE SUBJECT OF PROJECT NO 5.100-11-37.045 ; GEOLOGICAL AND MINING STUDIES MALI-WEST I , ' GEOLOGICAL AND MINING MAP ' , AND , IN THE ALTERNATIVE , AN ACTION FOR DAMAGES PURSUANT TO ARTICLES 178 AND 215 OF THE EEC TREATY FOR THE UNLAWFUL AND WRONGFUL CONDUCT OF THE COMMISSION IN REFUSING TO RELEASE THE FUNDS ALLOCATED TO THE PROJECT ALTHOUGH THE APPLICANTS MUST BE REGARDED AS THE SUCCESSFUL TENDERERS .

2 BY A SEPARATE DOCUMENT LODGED AT THE COURT REGISTRY ON THE SAME DATE , THE APPLICANTS MADE AN APPLICATION PURSUANT TO ARTICLES 185 AND 186 OF THE EEC TREATY FOR THE FOLLOWING INTERIM MEASURES :
' ( A ) AN ORDER THAT THE COMMISSION REFRAIN FROM ANY ACT WHICH MIGHT PREJUDICE THE LEGAL AND MATERIAL SITUATION OF THE APPLICANTS WHICH IS THE SUBJECT-MATTER OF THE MAIN APPLICATION TO THE COURT ;

( B)AN ORDER THAT THE COMMISSION DESIST FROM EXERTING IMPROPER PRESSURE ON THE REPUBLIC OF MALI IN ORDER TO PREVENT IT FROM CONCLUDING WITH THE APPLICANTS THE CONTRACT WHICH IS THE SUBJECT OF PROJECT NO 5.100-11-37.045 ;

( C)AN ORDER THAT THE COMMISSION MAKE AVAILABLE TO MALI THE FUNDS ALLOCATED TO THE PROJECT ;

( D)AN ORDER THAT THE COMMISSION AUTHORIZE MALI TO ENTER INTO A CONTRACT WITH THE APPLICANTS , PURSUANT TO ARTICLE 122 ( 5 ) AND ARTICLE 123 ( 2 ) ( C ) OF THE SECOND LOME CONVENTION AND ARTICLE 4 OF THE RULES GOVERNING THE RESTRICTED INVITATION TO TENDER IN QUESTION ' .

3 IN SUPPORT OF THEIR MAIN APPLICATION THE APPLICANTS STATE THAT ON 19 JULY 1985 THEY WERE ASKED TO TAKE PART IN A RESTRICTED INVITATION TO TENDER ISSUED BY THE DIRECTION NATIONALE DE LA GEOLOGIE ET DES MINES ( NATIONAL GEOLOGY AND MINES DIRECTORATE ) OF MALI FOR A PROJECT ENTITLED ' GEOLOGICAL AND MINING STUDIES MALI-WEST I - SUBPROJECT GEOLOGICAL AND MINING MAP ' FINANCED BY THE EUROPEAN ECONOMIC COMMUNITY THROUGH THE FIFTH EUROPEAN DEVELOPMENT FUND FOR A SUM OF ABOUT 3 500 000 ECU . THE APPLICANT SUBMITTED A TENDER WHICH FULLY COMPLIED WITH THE INVITATION TO TENDER AND A SUPPLEMENT CONTAINING A PROPOSAL FOR CERTAIN ADDITIONAL ANALYSES WHICH APPEARED DESIRABLE . OTHER TENDERS WERE SUBMITTED , INTER ALIA BY KLOCKNER , A GERMAN COMPANY . THE TENDERS WERE CONSIDERED BY A COMMITTEE FOR THE EXAMINATION OF TENDERS ESTABLISHED BY THE MALI GOVERNMENT ; THAT COMMITTEE MADE A REPORT IN THE FORM OF THE MINUTES OF A MEETING HELD ON FRIDAY 13 DECEMBER 1985 AT WHICH A REPRESENTATIVE OF THE COMMISSION DELEGATION WAS PRESENT AS AN OBSERVER . THE REPORT , DATED 12 NOVEMBER 1985 , DESCRIBES BREDA-GEOMINERARIA ' S CAPACITY TO CARRY OUT THE PROJECT AS CLEARLY SUPERIOR . THE REPORT WAS SENT TO THE COMMISSION DELEGATE ON 2 JANUARY 1986 BY THE HEAD OF THE DEPARTMENTAL STAFF OF THE MINISTER OF STATE FOR INDUSTRIAL DEVELOPMENT AND TOURISM . THAT LETTER WAS FOLLOWED BY A SECOND ON 29 JANUARY 1986 , IN WHICH THE SAME OFFICIAL INFORMED THE COMMISSION DELEGATE OF A SECOND MEETING WHICH HAD BEEN HELD WITH BREDA-GEOMINERARIA AND KLOCKNER , AND STATED THAT THERE WAS A DIFFERENCE BETWEEN THE TECHNICAL METHODS ENVISAGED FOR THE RESEARCH IN QUESTION . THE TECHNICAL EVALUATION COMMITTEE CONSIDERED THAT BREDA-GEOMINERARIA ' S OFFER WAS CLEARLY PREFERABLE FROM BOTH THE TECHNICAL AND FINANCIAL POINTS OF VIEW .

4 THE COMMISSION AND THE GOVERNMENT OF MALI THEN EXCHANGED A NUMBER OF LETTERS , FROM WHICH IT MAY BE SEEN THAT THERE WAS A DIFFERENCE OF OPINION AS TO THE MERITS OF THE TWO TENDERS . THE COMMISSION CONSIDERED THAT KLOCKNER ' S TENDER WAS LOWER AND WAS JUST AS SOUND TECHNICALLY AS BREDA-GEOMINERARIA ' S WHILE THE GOVERNMENT OF MALI CONSIDERED THAT THE METHOD PROPOSED BY KLOCKNER WAS NOT IN CONFORMITY WITH THE TERMS OF REFERENCE AND COVERED THE ANALYSIS OF ONLY 10 100 SAMPLES INSTEAD OF 40 500 AS CALLED FOR BY THE INVITATION TO TENDER . EVEN NOW THE GOVERNMENT OF MALI AND THE COMMISSION HAVE APPARENTLY NOT YET REACHED AGREEMENT ON THE AWARD OF THE CONTRACT .

5 THE APPLICANTS CONSIDER THAT THEY SHOULD BE REGARDED AS THE SUCCESSFUL TENDERERS FOR THE CONTRACT , EITHER UNDER ARTICLE 122 ( 5 ) OR IN THE ALTERNATIVE UNDER ARTICLE 123 ( 2 ) ( C ) OF THE SECOND LOME CONVENTION OF 31 OCTOBER 1979 .
6 IN THEIR FIRST SUBMISSION , THE APPLICANTS ARGUE THAT THE PROPOSAL FOR THE AWARD OF THE CONTRACT WAS NOTIFIED TO THE COMMISSION DELEGATES IN MALI ON 2 JANUARY 1986 . THE COMMISSION DID NOT RESPOND TO THAT NOTIFICATION UNTIL 14 FEBRUARY 1986 . UNDER ARTICLE 122 ( 5 ) OF THE SECOND LOME CONVENTION DECISIONS TAKEN BY THE NATIONAL AUTHORIZING OFFICER WITH REGARD TO CONTRACTS OF LESS THAN 3.5 MILLION ECU AND IN GENERAL TO ALL CONTRACTS TO WHICH THE ACCELERATED PROCEDURE APPLIES ARE DEEMED TO HAVE BEEN APPROVED BY THE COMMISSION WITHIN 30 DAYS OF THEIR NOTIFICATION TO THE COMMISSION DELEGATE . THE CONTRACT IN QUESTION FALLS UNDER THAT PROVISION .

7 ACCORDING TO THE APPLICANTS , ARTICLE 122 ( 5 ) OF THE CONVENTION ESTABLISHES AN IRREBUTTABLE PRESUMPTION THAT THE PROPOSAL FOR THE AWARD OF THE CONTRACT HAS BEEN APPROVED .

8 IN THEIR SECOND SUBMISSION THE APPLICANTS ARGUE THAT EVEN IF THE COURT CONSIDERS THAT ARTICLE 122 ( 5 ) DOES NOT HAVE THE EFFECT DESCRIBED , THE COMMISSION WAS GUILTY OF AN UNLAWFUL ACT IN FAILING TO APPROVE THE PROPOSAL FOR THE AWARD OF THE CONTRACT IN ACCORDANCE WITH ARTICLE 123 ( 2 ) ( C ) OF THE CONVENTION , SINCE THEIR TENDER WAS THE LOWEST , DID NOT EXCEED THE SUM EARMARKED FOR THE CONTRACT AND WAS ECONOMICALLY THE MOST ADVANTAGEOUS , IN ACCORDANCE WITH ARTICLE 130 ( 1 ) OF THE CONVENTION . THE APPLICANTS RAISE A NUMBER OF ARGUMENTS IN SUPPORT OF THOSE POINTS .

9 WITH REGARD TO THE HARM THAT THEY HAVE SUFFERED , THE APPLICANTS SUBMIT THAT THE DECISION AWARDING THE CONTRACT MUST BE TAKEN IMMEDIATELY SO THAT WORK CAN START AT THE BEGINNING OF THE DRY SEASON IN SEPTEMBER . THE WORK CANNOT BE CARRIED OUT IN THE RAINY SEASON , WHICH BEGINS IN ABOUT THE MONTH OF MAY . IF THE APPLICANTS WERE OBLIGED TO WAIT UNTIL JUDGMENT ON THEIR MAIN APPLICATION , THEY WOULD HAVE TO DISMISS THE STAFF SPECIALLY ASSIGNED TO THE PROJECT IN QUESTION . SIX HIGHLY SPECIALIZED PERSONS ARE BEING KEPT IDLE , WAITING FOR THE CONTRACTS TO BE AWARDED TO THE APPLICANTS . THE APPLICANTS CANNOT LEAVE THESE PERSONS INACTIVE FOR SEVERAL MONTHS . TO LAY THEM OFF WOULD MAKE IT IMPOSSIBLE OR EXTREMELY DIFFICULT FOR THE APPLICANTS TO MAINTAIN THEIR EXISTING TENDER , SINCE THOSE PERSONS WOULD BE EMPLOYED ON OTHER PROJECTS AND BY OTHER COMPANIES .

10 IN ITS OBSERVATIONS THE COMMISSION STATES THAT THE APPLICANTS ARE IN ERROR . IT ARGUES THAT THE CONTRACT IN QUESTION IS A CONTRACT FOR SERVICES AND IS THEREFORE , SO LONG AS NO DECISION HAS BEEN ADOPTED BY THE ACP/EEC COUNCIL OF MINISTERS UNDER ARTICLE 142 OF THE SECOND LOME CONVENTION , GOVERNED BY ARTICLES 24 TO 27 OF PROTOCOL NO 2 TO THE FIRST LOME CONVENTION . UNDER ARTICLE 24 ( 2 ) OF THAT PROTOCOL , CONTRACTS ARE TO BE AWARDED TO THE CANDIDATE THAT SUBMITS THE TENDER JUDGED BY THE COMMISSION AND THE ACP STATE CONCERNED TO BE ECONOMICALLY THE MOST ADVANTAGEOUS . THE COMMISSION ALSO POINTS OUT THAT THE LETTERS FROM THE HEAD OF THE DEPARTMENTAL STAFF OF THE MINISTER OF STATE FOR INDUSTRIAL DEVELOPMENT AND TOURISM DO NOT CONSTITUTE THE NOTIFICATION OF A DECISION TAKEN BY THE NATIONAL AUTHORIZING OFFICER FOR THE PURPOSES OF ARTICLE 122 ( 5 ) OF THE SECOND LOME CONVENTION OR A PROPOSAL FOR THE AWARD OF A CONTRACT MADE BY THE NATIONAL AUTHO RIZING OFFICER FOR THE PURPOSES OF ARTICLE 123 ( 2 ) ( C ), SINCE THE NATIONAL AUTHORIZING OFFICER IS NOT THE MINISTER OF STATE FOR INDUSTRIAL DEVELOPMENT AND TOURISM BUT THE MINISTER FOR FOREIGN AFFAIRS AND INTERNATIONAL COOPERATION .

11 THE COMMISSION GOES ON TO ARGUE THAT THE MAIN APPLICATION FOR ANNULMENT IS INADMISSIBLE SINCE THERE IS NO DECISION TO BE ANNULLED . THE EXCHANGE OF CORRESPONDENCE BETWEEN THE REPUBLIC OF MALI AND THE COMMISSION HAS NOT PASSED THE STAGE OF TECHNICAL NEGOTIATION . THE COURT HAS HELD THAT IN ORDER FOR THERE TO BE A DECISION WHICH IS CAPABLE OF BEING ANNULLED , THE ACT IN QUESTION MUST HAVE BEEN ISSUED BY THE COMPETENT AUTHORITY , BE INTENDED TO PRODUCE LEGAL EFFECTS AND CONSTITUTE THE CULMINATION OF A PROCEDURE WITHIN THAT AUTHORITY , WHEREBY THE AUTHORITY GIVES ITS FINAL RULING IN A FORM FROM WHICH ITS NATURE CAN BE IDENTIFIED . THE TELEX MESSAGE SENT BY THE COMMISSION ON 12 FEBRUARY 1986 DISPLAYS NONE OF THOSE CHARACTERISTICS .

12 WITH REGARD TO THE ACTION FOR DAMAGES SUBMITTED IN THE ALTERNATIVE BY THE APPLICANTS , THE COMMISSION CONSIDERS THAT THERE IS NO FACTUAL OR LEGAL BASIS FOR A PRIMA FACIE FINDING THAT IT IS LIABLE .

13 FURTHERMORE , THE COMMISSION DENIES THAT THE MATTER IS URGENT , SINCE IT WAS AT THEIR OWN RISK THAT THE APPLICANTS EMPLOYED STAFF TO CARRY OUT A PROJECT BEFORE BEING FINALLY AWARDED THE CONTRACT .

14 THE MEASURES APPLIED FOR WOULD MOREOVER HAVE IRREVERSIBLE CONSEQUENCES AND TO ORDER SUCH MEASURES WOULD SERIOUSLY PREJUDICE THE DECISION ON THE SUBSTANCE OF THE CASE . AN ORDER REQUIRING THE COMMISSION TO RELEASE FUNDS TO MALI AND AUTHORIZE IT TO ENTER INTO A CONTRACT WITH THE APPLICANTS WOULD CERTAINLY NOT BE AN INTERIM MEASURE ; ON THE CONTRARY , IT WOULD CONSTITUTE A FINAL MEASURE , THAT IS TO SAY THE AWARD OF THE CONTRACT TO THE APPLICANTS .

15 THE APPLICATION WAS HEARD BY THE PRESIDENT OF THE COURT ON 25 SEPTEMBER 1986 , AND AT THAT TIME THE APPLICANTS HAD THE OPPORTUNITY TO PRESENT ORAL ARGUMENT . THE COMMISSION WAS ALSO REPRESENTED , BUT THE PRESIDENT DID NOT CONSIDER IT NECESSARY TO HEAR ITS OBSERVATIONS ; AT THE CLOSE OF THE HEARING HE ANNOUNCED THAT THE APPLICATION WOULD BE DISMISSED AND THAT THE GROUNDS FOR DISMISSAL WOULD BE COMMUNICATED TO THE PARTIES AS SOON AS POSSIBLE .

16 THE COURT HAS CONSISTENTLY HELD THAT INTERIM MEASURES MAY NOT BE CONTEMPLATED UNLESS THE FACTUAL AND LEGAL CIRCUMSTANCES RELIED ON ESTABLISH A PRIMA FACIE CASE IN FAVOUR OF GRANTING THEM . FURTHERMORE , SUCH MEASURES MUST BE URGENT , IN THE SENSE THAT IT MUST BE NECESSARY FOR THEM TO BE ADOPTED AND TO TAKE EFFECT EVEN BEFORE THE COURT ' S DECISION ON THE MAIN APPLICATION IN ORDER TO PREVENT THE PARTY WHICH REQUESTS THEM FROM SUFFERING SERIOUS AND IRREPARABLE DAMAGE . FINALLY , THEY MUST BE TEMPORARY , IN THE SENSE THAT THEY MUST NOT PREJUDGE THE DECISION ON THE MAIN APPLICATION .

17 THE APPLICATION FOR INTERIM MEASURES MUST BE DISMISSED FOR TWO REASONS . FIRST OF ALL , IT IS CLEAR THAT THE MAIN APPLICATION IS PREMATURE AND INADMISSIBLE , SINCE THERE IS NO DECISION WHICH CAN BE CONTESTED . IT IS NOT NECESSARY TO EXPRESS A VIEW AS TO WHETHER THE CONTRACT IN QUESTION IS GOVERNED BY ARTICLES 120 TO 124 OF THE SECOND LOME CONVENTION OR BY ARTICLE 142 OF THAT CONVENTION AND ARTICLES 24 TO 27 OF PROTOCOL NO 2 TO THE FIRST LOME CONVENTION . IT IS CLEAR THAT ALTHOUGH THE GOVERNMENT OF MALI DID AT ONE POINT EXPRESS A PREFERENCE FOR THE APPLICANT , IT HAS NOT YET AWARDED THE CONTRACT ; NOR HAS THERE BEEN ANY JOINT DECISION BY THE MALI GOVERNMENT AND THECOMMISSION . IN THE CIRCUMSTANCES THERE IS NOTHING FOR THE COURT TO ANNUL , AND THERE IS NO DEFINITE HARM FOR WHICH THE COMMISSION MIGHT BE FOUND LIABLE , EVEN IF THERE WAS EVIDENCE OF MISCONDUCT ON ITS PART .

18 SECONDLY , IT IS QUITE OBVIOUS THAT THE MEASURES WHICH THE COURT HAS BEEN ASKED TO ORDER GO FAR BEYOND THE INTERIM MEASURES WHICH MAY BE CONTEMPLATED IN AN INTERLOCUTORY APPLICATION . WHAT THE APPLICANTS SEEK IS IN FACT AN ORDER THAT THE COMMISSION TAKE ALL THE NECESSARY STEPS TO ENSURE THAT A CONTRACT IS SIGNED WITH THEM . FROM THE APPLICANTS ' POINT OF VIEW , IF SUCH A MEASURE WERE ADOPTED THEIR MAIN ACTION WOULD BECOME NUGATORY , SINCE THEY WOULD HAVE OBTAINED ALL THAT THEY SOUGHT BY THEIR ACTION FOR ANNULMENT AND THEIR ACTION FOR DAMAGES . THE ADOPTION OF SUCH MEASURES WOULD THUS PREJUDGE THE DECISION ON THE SUBSTANCE OF THE CASE .

ON THOSE GROUNDS ,
THE PRESIDENT ,
BY WAY OF INTERIM DECISION
HEREBY ORDERS AS FOLLOWS :
( 1 ) THE APPLICATION IS DISMISSED .

( 2 ) COSTS ARE RESERVED .