A missed helicopter public contract at EULEX Kosovo = Lawsuit

(BRUSSELS2) The case decided by the Court of First Instance of the EU a few days ago deserves a detailed comment because it pits a tenderer against a public contract launched by one of the civilian missions of the European common security and defense system (CSDP) — Eulex Kosovo. It is not often. And the argument of the president of the 7th chamber (A. Dittrich), if it can be discussed, is very detailed and answers a number of questions that can be asked in terms of the missions of the PeSDC.

The origin of the dispute

On June 4, the Court rejected the appeal of the company Elitalia, one of the oldest private Italian helicopter companies which notably provides the 118 emergency service from its Rome base. It felt that it had presented a better offer than its competitor. Its offer to provide helicopter support (of the Medevac type - medical evacuation) for the European Union's "rule of law" mission (EULEX) in Kosovo was rejected at the end of March 2012. Starlite Aviation Operations - a South African company also based in Ireland - which won the contract.

After trying in vain to access its competitor's file - to find out the reasons which had given rise to its success - the company filed a complaint against Eulex Kosovo, asking the judge to stay the execution of the contract and to prohibit EULEX to conclude the contract.

EULEX raises the preliminary question of inadmissibility

Before addressing the merits, the first question to be addressed was that of the inadmissibility of the application. The EULEX Kosovo mission raised two arguments in this regard.

1° On the one hand, " it cannot have the status of defendant in the present case because it does not have the status of an independent body ».

2° On the other hand, it maintains that the Tribunal is not " not competent with regard to acts adopted on the basis of the provisions of the European Treaty relating to the common foreign and security policy (CFSP)”.

EULEX has no legal personality

The judge analyzes the decision establishing the EULEX Kosovo mission, its organization chart and its chain of command (from the HR and the COPS to the head of mission via the commander of civil operations). And he concludes that Eulex Kosovo does not have no legal personality. That's not a "an organ or agency of the Union" because it does not have legal personality. And so he can't « be a party to proceedings before the courts of the Union”. It's about " of a mission, that is to say of a simple action, the duration of which has been limited” in time. However, according to the case law of the Court a mission cannot be considered as an organ or agency of the Union within the meaning of Article 263, 1st paragraph, TFEU” (order of the President of the General Court of 22 July 2010, H v Council, T 271/10 R).

The only "responsible" is the head of mission

To trace who is really responsible for the decision, the Tribunal retains the organic criterion. It does not matter who signed the decision not to award (in this case the Director of Administration and Support Services of EULEX). The head of Eulex Kosovo “ exercises command and control of the workforce as well as administrative and logistical responsibility”, according to joint action 2008/124. He therefore assumesalone" the responsibility.

A budget executed on behalf of the Commission

However, he assumes this responsibility by delegation from the European Commission, which is responsible for the actions of the head of mission. The budget in question is indeed that of EULEX Kosovo: The measures taken in the context of the procurement procedure in question concern the budget of Eulex Kosovo ". And " all expenditure must be managed in accordance with Community rules and procedures applicable to the general budget of the Union. "In this case, this one" delegated certain budget execution tasks of Eulex Kosovo to the Head of Eulex Kosovo ". The head of Eulex Kosovo has also signed to this effect " a contract with the Commission”.

The Commission must therefore assume the role of defendant

The head of the mission is thus not a "defendant" in legal terms. The fact that the head of the mission " represents Eulex Kosovo in the area of ​​operation and ensures the good visibility of Eulex Kosovo, can conclude technical agreements with Member States or participating third States and other international actors deployed in Kosovo, relating to the supply of equipment, services and premises at Eulex Kosovo » does not influence this qualification.

The acts adopted by him "din the context of the procurement procedure in question are attributable to the Commission, which has the status of defendant.. Indeed, recalls the president of the 7th chamber citing a previous case law of the court, “ acts adopted under delegated powers are normally imputed to the delegating institution, which is responsible for defending the act in question in court.  (Order of the General Court of 4 June 2012, Elti v Delegation of the Union to Montenegro, T‑395/11).

The principle of judicial review respected

This structure - the head of the mission acting on delegation from the Commission - makes it possible to compensate for the lack of legal personality of the mission and to respect the principle of " judicial review ". Principle which states that any act emanating from a Union institution, body, office or agency intended to produce legal effects vis-à-vis third parties must be subject to judicial review (judgment of the Court of 23 April 1986, Les Verts v Parliament, 294/83)

But dismissal of the request...

However, the judge refuses the admissibility of the request, for a purely formal reason. This was directed against EULEX Kosovo. And he refuses to appoint another defendant, the applicant having " the intention to bring the action expressly against Eulex Kosovo ". He also does not recognize excusable error ". Certainly " the contract notice indicated the head of Eulex Kosovo as the contracting authority to which the tender was to be submitted ". And " neither the contract notice nor the letters sent by the head of Eulex Kosovo or the said director indicated a party against whom a possible appeal against measures taken within the framework of the procurement procedure in question could be brought. “But the judge also rejects this argument considering that” the excusable error “only applies to the case of belated appeal.

Comments : if the argument followed by the judge has a certain logic, by shattering the fiction of the head of mission "solely responsible"; in his last arguments, we have some difficulty in following him. Because his last argument, very formalistic, appears in full contradiction with the principle of judicial review. Especially since the EULEX Kosovo mission committed a notable fault, by not indicating which authority actually issues the document and against whom to direct the appeal. In my opinion, this deserves the cassation. Because if the applicant directed his appeal against EULEX Kosovo, it is because the mission let it be believed that it was the holder and issuer of the call for tenders.

It can also be noted that the judge never mentions his incompetence for a reason relating to the CFSP. This point was not addressed by the Tribunal, which preferred to stick to the first argument (the concept of "defendant"). In doing so, it seems to recognize that the notion of lack of jurisdiction on CFSP grounds is an exception, to be interpreted restrictively and which is only exercised if there is no jurisdiction on another ground (in particular on public procurement).

(Nicolas Gros-Verheyde)

Download theCourt order T-213/12