Elitaliana v Eulex Kosovo (Judgment) [2015] EUECJ C-439/13 (12 November 2015)

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(Appeal — Public service contracts — Joint Action 2008/124/CFSP — Call for tenders for helicopter support for the Eulex Mission in Kosovo — Action brought against the decision awarding the contract — Article 24(1), second subparagraph, TEU — Article 275, first subparagraph, TFEU — Common foreign and security policy (CFSP) — Jurisdiction of the Court — Article 263, first paragraph, TFEU — Meaning of ‘bodies, offices or agencies of the Union’ — Measures attributable to the European Commission — Excusable error)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 August 2013,

Elitaliana SpA, established in Rome (Italy), represented by R. Colagrande, avvocato,

Eulex Kosovo, established in Pristina (Kosovo), represented by G. Brosadola Pontotti, Solicitor,

composed of T. von Danwitz, President of the Fourth Chamber, acting as President of the Fifth Chamber, D. Šváby, A. Rosas, E. Juhász (Rapporteur) and C. Vajda, Judges,

after hearing the Opinion of the Advocate General at the sitting on 4 December 2014,

having regard to the order of 10 February 2015 reopening the oral procedure and further to the hearing on 25 March 2015,

after hearing the Opinion of the Advocate General at the sitting on 21 May 2015,

1 By its appeal, Elitaliana SpA (‘Elitaliana’) seeks the setting aside of the order of the General Court of the European Union of 4 June 2013 in Elitaliana v Eulex Kosovo (T‑213/12, EU:T:2013:292, ‘the order under appeal’), by which the General Court dismissed its action for (i) the annulment of measures adopted by the Mission established on the basis of Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo (OJ 2008 L 42, p. 92), as amended by Council Decision 2011/752/CFSP of 24 November 2011 (OJ 2011 L 310, p. 10; ‘Joint Action 2008/124’), in the context of the award to another tenderer of the public contract entitled ‘EuropeAid/131516/D/SER/XK — Helicopter Support to the Eulex Mission in Kosovo (PROC/272/11)’ (‘the measures at issue’) and (ii) an order that the Rule of Law Mission in Kosovo, known as Eulex Kosovo, referred to in Article 1 of Joint Action 2008/124 pay compensation for the loss sustained as a result of the failure to award that contract to the appellant.

2 Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as amended by Regulation (EU, Euratom) No 1081/2010 of the European Parliament and of the Council of 24 November 2010 (JO 2010 L 311, p. 9; ‘the Financial Regulation’), in force at the material time, stated in Article 1(1) that the purpose of the regulation was to lay down ‘the rules for the establishment and the implementation of the general budget of the European Union, … and the presentation and auditing of the accounts’.

(a) the revenue and expenditure of the European Community, including administrative expenditure occasioned for the institutions by the provisions of the Treaty on European Union relating to the [CFSP] and police and judicial cooperation in criminal matters, and the operating expenditure occasioned by implementation of those provisions where this is charged to the budget.’

4 Article 48(1) of the Financial Regulation provided that ‘[t]he Commission shall implement the revenue and expenditure of the budget in accordance with this Regulation, on its own responsibility and within the limits of the appropriations authorised’.

‘Where the Commission implements the budget on a centralised basis, implementation tasks shall be performed, either directly by its departments or by Union Delegations in accordance with the second paragraph of Article 51, or indirectly, in accordance with Articles 54 to 57.’

‘1. The Commission may not delegate to third parties the executive powers it enjoys under the Treaties where they involve a large measure of discretion implying political choices. The implementing tasks delegated must be clearly defined and fully supervised as to the use made of them.

2. Within the limits laid down in paragraph 1, the Commission may, when implementing the budget by indirect centralised management or by decentralised management under Articles 53a or 53c, delegate tasks of public authority and in particular budget implementation tasks to:

(d) persons entrusted with the implementation of specific actions pursuant to Title V of the Treaty on European Union, and identified in the relevant basic act within the meaning of Article 49 of this Regulation.

‘Where the Commission implements the budget by indirect centralised management, it shall first obtain evidence of the existence and proper operation within the entities to which it entrusts implementation of the following:

(a) transparent procurement and grant-award procedures which are non-discriminatory and exclude any conflict of interest and which are in accordance with the provisions of Titles V and VI respectively;

8 Title V, which is entitled ‘Procurement’, of Part One of the Financial Regulation, set out the provisions that applied in this area.

9 Article 1 of Joint Action 2008/124, entitled ‘The Mission’, which was in force at the time of the facts giving rise to the present dispute, stated that the European Union was establishing a Rule of Law Mission in Kosovo, to be known as ‘Eulex Kosovo’.

10 Pursuant to Article 2 of the Joint Action, Eulex Kosovo’s mission statement was as follows:

‘Eulex Kosovo shall assist the Kosovo institutions, judicial authorities and law enforcement agencies in their progress towards sustainability and accountability and in further developing and strengthening an independent multi-ethnic justice system and multi-ethnic police and customs service, ensuring that these institutions are free from political interference and adhering to internationally recognised standards and European best practices.

Eulex Kosovo, in full cooperation with the European Commission Assistance Programmes, shall fulfil its mandate through monitoring, mentoring and advising, while retaining certain executive responsibilities.’

11 Article 3 of Joint Action 2008/124 defined Eulex Kosovo’s tasks as follows:

‘In order to fulfil the Mission Statement set out in Article 2, Eulex Kosovo shall:

(a) monitor, mentor and advise the competent Kosovo institutions on all areas related to the wider rule of law (including a customs service), whilst retaining certain executive responsibilities;

(b) ensure the maintenance and promotion of the rule of law, public order and security including, as necessary, in consultation with the relevant international civilian authorities in Kosovo, through reversing or annulling operational decisions taken by the competent Kosovo authorities;

(c) help to ensure that all Kosovo rule of law services, including a customs service, are free from political interference;

(d) ensure that cases of war crimes, terrorism, organised crime, corruption, inter-ethnic crimes, financial/economic crimes and other serious crimes are properly investigated, prosecuted, adjudicated and enforced, according to the applicable law, including, where appropriate, by international investigators, prosecutors and judges jointly with Kosovo investigators, prosecutors and judges or independently, and by measures including, as appropriate, the creation of cooperation and coordination structures between police and prosecution authorities;

(e) contribute to strengthening cooperation and coordination throughout the whole judicial process, particularly in the area of organised crime;

(g) contribute to the implementation of the Kosovo Anti-Corruption Strategy and Anti-Corruption Action Plan;

(h) assume other responsibilities, independently or in support of the competent Kosovo authorities, to ensure the maintenance and promotion of the rule of law, public order and security, in consultation with the relevant Council agencies;

(i) ensure that all its activities respect international standards concerning human rights and gender mainstreaming.’

12 Article 8(5) of Joint Action 2008/124 defined the functions of the Head of Mission in the following terms:

‘The Head of Mission shall be responsible for the implementation of … Eulex Kosovo’s budget. For this purpose, the Head of Mission shall sign a contract with the Commission.’

13 Article 11 of the Joint Action, entitled ‘Chain of command’, provided that:

‘1. Eulex Kosovo shall have a unified chain of command, as a crisis management operation.

2. Under the responsibility of the Council and the HR [High Representative], the PSC [Political and Security Committee] shall exercise political control and strategic direction of Eulex Kosovo.

3. … [T]he Civilian Operation Commander, under the political control and strategic direction of the PSC and the overall authority of the HR, shall be the commander of Eulex Kosovo at strategic level and, as such, shall issue the Head of Mission with instructions and provide him with advice and technical support.

14 Under paragraphs 2 to 4 of Article 16 of Joint Action 2008/124, which concern financial arrangements:

‘2. All expenditure shall be managed in accordance with the rules and procedures applicable to the general budget of the [European Union].

3. Subject to the Commission’s approval, the Head of Mission may conclude technical arrangements with EU Member States, participating third States and other international actors deployed in Kosovo regarding the provision of equipment, services and premises to Eulex Kosovo. ...

4. The Head of Mission shall report fully to, and be supervised by, the Commission on the activities undertaken in the framework of his contract.’

15 The background to the dispute was set out as follows in paragraphs 2 to 7 of the order under appeal:

‘2 On 18 October 2011, by a restricted procedure, an invitation for tenders for a public service contract concerning a project entitled “Helicopter Support to the Eulex mission in Kosovo” was published in the Supplement to the Official Journal of the European Union (OJ 2011/S 200-324817), under the reference EuropeAid/131516/D/SER/XK. That invitation included the following notice: “Contracting authority: the Head of Eulex Kosovo, Pristina, Kosovo”.

3 By letter of 23 December 2011, to which were annexed, in particular, instructions for the tenderers, the head of Eulex Kosovo requested the applicant, Elitaliana …, an Italian company operating in the field of helicopter services which it supplies to public bodies, to participate in the restricted tender procedure.

5 By letter of 29 March 2012, the director of administration and support services of Eulex Kosovo notified the applicant that its bid had been placed second.

6 By letter of 2 April 2012, the applicant requested Eulex Kosovo for access to certain documents submitted by the tenderer whose bid had been placed first. By letter of 17 April 2012, the Head of Eulex Kosovo refused to grant access to those documents.

7 On 24 April 2012, the Head of Eulex Kosovo awarded the contract at issue to the tenderer whose bid had been placed first.’

16 The contract notice referred to the fact that the contract was within the scope of the programme under Joint Action 2008/124 and described the contract as follows: ‘Provision of a helicopter service on a 24/7 basis in the region of Kosovo and neighbouring States for search and rescue and medical evacuation flights (Medevac) as well as flights in support of any Mission-related operation, such as transport of police officers, air surveillance and other Mission-related operations. ...’

17 By application lodged at the Registry of the General Court on 23 May 2012, Elitaliana brought an action seeking (i) annulment of the measures at issue and (ii) an order that Eulex Kosovo pay compensation in respect of the loss that the appellant claimed to have suffered as a result of those measures.

18 In those proceedings Eulex Kosovo raised a plea of inadmissibility, in accordance with Article 114(1) of the Rules of Procedure of the General Court, maintaining (i) that Elitaliana’s action for annulment could not be brought against Eulex Kosovo, since, given that the latter was not an independent body, it did not have capacity to act as defendant and (ii) that the General Court did not have jurisdiction given that the measures at issue had been adopted on the basis of the provisions of the FEU Treaty relating to the common foreign and security policy (CFSP).

19 By the order under appeal, the General Court, at paragraphs 19 to 37 of that order, accepted the plea of inadmissibility raised by Eulex Kosovo and therefore dismissed Elitaliana’s action.

20 The General Court, first, at paragraphs 19 to 25 of the order under appeal, considered whether Eulex Kosovo was a ‘body, office or agency of the Union’ within the meaning of the first paragraph of Article 263 TFEU and accordingly had capacity to act as defendant in the proceedings before it.

21 After analysing the wording of Articles 1(1), 6, 7(1) and (2) and 11 of Joint Action 2008/124, the General Court reached the following conclusion, at paragraph 26 of the order under appeal:

‘In the light of the abovementioned provisions, Eulex Kosovo does not have legal personality and there is no provision that it can be a party to proceedings before the European Union Courts.’

22 After noting, secondly, at paragraph 27 of the order under appeal, that Elitaliana was seeking the annulment of measures taken by Eulex Kosovo in the context of the award of the contract at issue, the General Court, at paragraph 31 of the order, held that under Articles 8(5) and 16(2) of Joint Action 2008/124 (i) the Head of Mission was responsible for the implementation of Eulex Kosovo’s budget and, for that purpose, signed a contract with the Commission and (ii) that all expenditure was to be managed ‘in accordance with the rules and procedures applicable to the general budget of the European Union’. The General Court concluded from those elements that the Commission had delegated certain tasks relating to the implementation of Eulex Kosovo’s budget to the Head of Mission.

23 The General Court thus concluded, at paragraph 34 of the order under appeal, that ‘[i]n those circumstances, it must be held that the measures adopted by the Head of Eulex Kosovo in the context of the procedure for the award of the contract at issue are attributable to the Commission, which has legal capacity to be a defendant under the first paragraph of Article 263 TFEU. Those measures may, therefore, be the subject of judicial review in accordance with the requirements of the general principle, invoked by [Elitaliana], that any measure adopted by an institution, body or agency of the European Union which is intended to have legal effects vis-à-vis third parties, must be subject to review’. Those considerations led the General Court to find, at paragraph 35 of the order under appeal, that ‘[c]onsequently, Eulex Kosovo does not have legal capacity to be a defendant’.

24 The General Court, thirdly, examined Elitaliana’s argument that, in the event of Eulex Kosovo being found not to have legal capacity, it was still open to the General Court to remedy that error by considering the body responsible for the measure at issue to be the defendant.

25 The General Court, at paragraph 39 of the order under appeal, found that, in the case before it, the designation, in the application, of Eulex Kosovo as defendant did not arise from an error since it was quite clear from the content of the application that Elitaliana considered Eulex Kosovo to be a ‘body, office or agency of the Union’ within the meaning of the first paragraph of Article 263 TFEU, and since, in any event, nothing in the application permitted the inference that Elitaliana had brought an action against an entity other than Eulex Kosovo.

26 Fourthly, the General Court considered whether, as Elitaliana maintained, it could be granted the benefit of excusable error on the basis of the case-law of the Court of Justice and the General Court by virtue of which the existence of such an error is acknowledged where the conduct of the institution concerned has, either on its own or to a decisive extent, been such as to give rise to understandable confusion in the mind of a person acting in good faith and exercising normal care and attention.

27 Concerning that plea in law, the General Court began by stating, at paragraph 41 of the order under appeal, that none of the documents concerning the contract at issue mentioned a party against whom actions could be brought. The General Court concluded on that basis that ‘in the light of the complex legal situation governing the relationship in that procedure between Eulex Kosovo and the Head thereof, on the one hand, and the Commission and the Council, on the other hand, it was without doubt difficult for the applicant to identify the party to whom the … measures [at issue] were attributable and who had legal capacity to be a defendant’.

28 The General Court, at paragraph 42 of the order under appeal, went on to state, however, that, according to the case-law relied on by Elitaliana, the only effect that the existence of an excusable error may have is to permit the court before which an action has been brought to hold the action admissible even though it is out of time. It noted that, since Elitaliana’s action had been brought within the period prescribed, that case-law was not relevant in the case before it.

29 At paragraph 43 of the order under appeal, the General Court stated that it was apparent from the application that Elitaliana had identified Eulex Kosovo as a body, office or agency and had unambiguously brought its action against Eulex Kosovo, even though, on a reading of Joint Action 2008/124, Elitaliana could have avoided making such an error.

30 Fifth and finally, the General Court, at paragraph 45 of the order under appeal, concluded its analysis as follows:

‘It follows from all of the foregoing considerations that, because Eulex Kosovo does not have legal capacity to be a defendant, the action brought against the latter by the applicant is inadmissible, both as concerns the application for annulment and the claim for damages, which is closely connected with the claim for annulment …, without it being necessary to rule on the alleged lack of jurisdiction of the General Court concerning acts adopted on the basis of the provisions of the [EU] Treaty relating to the CFSP.’

31 By decision of 24 June 2014, the Court assigned the case to the Fifth Chamber and decided to proceed to judgment without a hearing. The Opinion of the Advocate General was heard at the sitting on 4 December 2014.

32 By order of 10 February 2015, the Court ordered that the oral procedure be reopened and that a hearing be held. The parties and, in accordance with the second paragraph of Article 24 of the Statute of the Court of Justice of the European Union, the Commission and the Council, were asked to give their view on whether the General Court and the Court of Justice had jurisdiction to hear this case, taking into account the provisions concerning the CFSP in Section 1 of Chapter 2 of Title V of the EU Treaty and those of Article 275 TFEU.

33 Following the hearing on 25 March 2015 and delivery of the Advocate General’s Opinion at the sitting on 21 May 2015, the oral procedure was closed.

34 In its appeal, Elitaliana asks the Court to set aside the order under appeal. If the state of the proceedings so permits, Elitaliana requests that the claims it made before the General Court be upheld and that Eulex Kosovo be ordered to pay the costs of the proceedings. Should the Court consider that the state of the proceedings does not permit it to give judgment, Elitaliana requests that the case be referred back to the General Court.

35 Eulex Kosovo contends that the appeal should be dismissed and Elitaliana ordered to pay the costs.

36 As a preliminary point, it should be noted that the General Court did not consider the question raised by Eulex Kosovo concerning the jurisdiction of the Courts of the European Union over the case in the light of the provisions of the Treaties on the CFSP, but gave judgment on the plea of inadmissibility alleging that Eulex Kosovo did not have capacity defend the proceedings.

37 Given that the question of the Court’s jurisdiction over an action is a matter of public policy, that question may be considered by the Court at any stage in the proceedings, even of its own motion (see, to that effect, judgment in Commission v Cyprus, C‑340/10, EU:C:2012:143, paragraph 20).

38 In the present case the Court must, of its own motion, raise that question, which formed the subject-matter of the reopened oral procedure, and consider it at the outset.

39 The Council, the Commission and Elitaliana take the view that the Court of Justice has jurisdiction to hear the present case.

40 Eulex Kosovo maintains that the Court has jurisdiction in respect of the status and activity of the Council and the Commission but that it does not have jurisdiction in respect of the status and activity of Eulex Kosovo.

41 According to the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court does not, in principle, have jurisdiction with respect to the provisions relating to the CFSP or with respect to acts adopted on the basis of those provisions (judgment in Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 69).

42 Nevertheless, the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU introduce a derogation from the rule of the general jurisdiction which Article 19 TEU confers on the Court of Justice to ensure that in the interpretation and application of the Treaties the law is observed, and they must, therefore, be interpreted narrowly (judgment in Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 70).

43 Under the first subparagraph of Article 41(2) TEU, ‘operating expenditure to which the implementation of [the] Chapter [concerning the specific provisions on the CFSP] gives rise shall … be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decides otherwise’.

44 That provision is reiterated, in substance, in Article 4(2)(a) of the Financial Regulation.

45 In accordance with Article 17 TEU and Article 317 TFEU, it is the Commission’s responsibility to implement the European Union budget.

46 It follows from Article 16(2) of Joint Action 2008/124 that ‘[a]ll expenditure’ of the Eulex Kosovo Mission ‘shall be managed in accordance with the rules and procedures applicable to the general budget of the [European Union]’.

47 In the present case, it is not disputed that the Eulex Kosovo Mission is civilian in nature and that the expenditure relating to the helicopter-support service for the Eulex Kosovo Mission was to be allocated to the European Union budget.

48 Therefore, the measures at issue, whose annulment was sought on the basis of an infringement of the rules of EU public procurement law, related to the award of a public contract which gave rise to expenditure to be charged to the European Union budget. Accordingly, the contract at issue is subject to the provisions of the Financial Regulation.

49 Having regard to the specific circumstances of the present case, the scope of the limitation, by way of derogation, on the Court’s jurisdiction, which is provided for in the final sentence of the second subparagraph of Article 24(1) TEU and in Article 275 TFEU, cannot be considered to be so extensive as to exclude the Court’s jurisdiction to interpret and apply the provisions of the Financial Regulation with regard to public procurement.

50 Consequently, the General Court and, in the case of an appeal, the Court of Justice have jurisdiction to hear this case.

First and second grounds of appeal: (i) the General Court should have accepted that Eulex Kosovo was a ‘body, office or agency of the Union’ within the meaning of Article 263 TFEU and (ii) Eulex Kosovo was incorrectly equated with an EU delegation

51 By its first and second grounds of appeal, which it is appropriate to consider together, Elitaliana complains, in the first place, that the General Court made an error of law in holding, at paragraph 26 of the order under appeal, that ‘Eulex Kosovo does not have legal personality and [that] there is no provision that it can be a party to proceedings before the European Union Courts’, that being the basis for its conclusion that Eulex Kosovo was not a ‘body, office or agency of the Union’ within the meaning of the first paragraph of Article 263 TFEU. Elitaliana argues that the General Court erred in failing to apply the case-law deriving from the judgment in Les Verts v Parliament (294/83, EU:C:1986:166). In that respect, Elitaliana submits that under Articles 8 and 16 of Joint Action 2008/124 the Head of Mission was given power to represent Eulex Kosovo and the associated legal liability for its acts, as well as financial autonomy. Elitaliana concludes that that entity was thus an ‘autonomous unit to which rights and obligations were attributed’, so that Eulex Kosovo had legal personality and, as a consequence, the status of body, office or agency of the Union.

52 Elitaliana argues, in the second place, that, at paragraphs 27 to 35 of the order under appeal, the General Court incorrectly equated Eulex Kosovo with a delegation and thus concluded that the measures adopted in connection with the public contract were attributable to the Commission.

54 As regards the appellant’s complaint that the General Court refused to acknowledge Eulex Kosovo’s status as a body, office or agency of the Union, it should be noted that Article 263 TFEU provides that the Court is to review the legality of acts of such bodies, offices or agencies intended to produce legal effects.

55 As the General Court stated, at paragraphs 24 and 25 of the order under appeal, various provisions of Joint Action 2008/124, in particular Article 11(2), demonstrate that political control and strategic direction of Eulex Kosovo, rather than being exercised independently by the Mission, were exercised by the Political and Security Committee (PSC), which itself exercised that control and direction under the responsibility of the Council and the High Representative of the Union for Foreign Affairs and Security Policy (HR).

56 As regards budgetary and financial matters, it follows from Article 8(5) of Joint Action 2008/124 that the Head of Mission ‘shall be responsible for the implementation of … Eulex Kosovo’s budget. For this purpose, the Head of Mission shall sign a contract with the Commission’. Article 16(3) of the Joint Action also provided that ‘[s]ubject to the Commission’s approval, the Head of Mission may conclude technical arrangements with EU Member States, participating third States and other international actors deployed in Kosovo regarding the provision of equipment, services and premises to Eulex Kosovo’. Article 16(4) of the Joint Action stated that ‘[t]he Head of Mission shall report fully to, and be supervised by, the Commission on the activities undertaken in the framework of his contract’.

57 It follows that, although the Head of Mission was described by Joint Action 2008/124 as ‘responsible’ for the implementation of the European Union budget, the fact remains that his powers were, in budgetary and financial matters, exercised under the supervision and authority of the Commission. Those factors led the General Court to find, at paragraph 36 of the order under appeal, that, in this area, the Head of Mission had limited powers and that he had in fact been granted only ‘a strictly limited legal capacity from a material point of view’, contrary to Elitaliana’s argument that Eulex Kosovo ‘certainly had legal personality in its capacity as an autonomous unit to which rights and obligations were attributed’.

58 It is apparent from the foregoing considerations that the General Court was correct in finding that Eulex Kosovo could not be regarded as having legal personality, since Joint Action 2008/124 classified that entity as a Mission and since, in political and strategic matters, the Mission was under the authority and control of the Council and the HR while, in budgetary and financial matters, the Head of Mission exercised his powers under the supervision and authority of the Commission.

59 Accordingly, the General Court did not err in law in holding, at paragraph 26 of the order under appeal, that Eulex Kosovo did not have legal personality and that provision was not made for it to be a party to proceedings before the European Union Courts. The General Court correctly concluded on that basis that Eulex Kosovo was a Mission, of limited duration, which could not be a ‘body, office or agency’ within the meaning of the first paragraph of Article 263 TFEU.

60 The appellant’s complaint that the General Court was incorrect in considering that Eulex Kosovo was acting as a delegation when it adopted the measures at issue must be rejected for the following reasons.

61 Under Article 53a of the Financial Regulation, where the Commission implements the budget on a centralised basis, implementation tasks may be performed indirectly, in accordance with Articles 54 to 57 of the regulation. Article 54 of the Financial Regulation specifies, in paragraph 2(d), that when the Commission implements the budget by indirect centralised management under Article 53a, it may delegate tasks of public authority and in particular budget implementation tasks to persons entrusted with the implementation of specific actions pursuant to Title V of the EU Treaty.

62 In the present case, Article 8(5) and Article 16(4) of Joint Action 2008/124 provide that the Head of Mission is responsible for the implementation of Eulex Kosovo’s budget and that, for that purpose, he is to sign a contract with the Commission. In the performance of that contract, the Head of Mission is to report fully to, and be supervised by, the Commission on the activities undertaken in the framework of his contract.

63 It follows from the previous two paragraphs of this judgment that, as the General Court rightly stated at paragraphs 31 and 32 of the order under appeal, the Commission, by the contract which it signed with the Head of Mission and in accordance with Article 54(2)(d) of the Financial Regulation, delegated to the Head of Mission its power to implement the budget. In the context of that delegation, the Head of Mission of Eulex Kosovo was required, as the person to whom the Commission had delegated its power, to comply with the budgetary rules of EU law, including the rules governing public procurement, as provided for in Title V of Part One of the Financial Regulation.

64 In that regard, the General Court, at paragraph 33 of the order under appeal, referred to the principle that measures adopted pursuant to delegated powers are normally attributed to the delegating institution, on which it falls to defend the measure in question in judicial proceedings.

65 Contrary to the appellant’s assertion and as the Advocate General has stated at points 62 and 63 of his Opinion of 4 December 2014, although paragraph 33 of the order under appeal refers to a decision of the General Court concerning a Delegation of the European Union, namely an entity established under Article 221 TFEU to represent the Union (in the decision in question the Delegation of the European Union to Montenegro), that paragraph cannot be interpreted to the effect that the General Court considered that Eulex Kosovo had to be equated with such an entity; paragraph 33 merely recalls a principle of law which the General Court had applied in its earlier decision.

66 Accordingly, the General Court was correct in finding, at paragraphs 34 and 35 of the order under appeal, that the measures adopted by Eulex Kosovo in the public procurement procedure in question were attributable to the Commission and that, on that account, Eulex Kosovo did not have legal capacity to be a defendant.

67 In that regard, it should be stressed that Elitaliana is mistaken in maintaining that the fact that Eulex Kosovo did not have capacity to be a party to the proceedings is contrary to the principles mentioned by the Court in its judgment in Les Verts v Parliament (294/83, EU:C:1986:166): according to those principles the general scheme of the Treaty is to make a direct action available against all measures adopted by the institutions which are intended to produce legal effects. In fact, as the General Court rightly stated, at paragraph 34 of the order under appeal, the measures at issue were amenable to judicial review, provided, however, that it was not Eulex Kosovo, but rather the Commission, as the delegating authority, which was designated in the application for, inter alia, annulment of those measures.

68 In the light of the foregoing considerations, the first and second grounds of appeal must be rejected as unfounded.

Third ground of appeal: the General Court erred in law in not accepting that there was an excusable error on Elitaliana’s part

69 Elitaliana’s third ground of appeal, which concerns the reasoning of the General Court relating to excusable error, is divided into two parts.

70 By the first part of its third ground of appeal, Elitaliana complains that the General Court, at paragraph 42 of the order under appeal, incorrectly limited the benefit of such an error to those cases in which the party relying on the error seeks to avoid the consequences associated with a failure to observe a procedural time-limit.

71 By the second part of the third ground of appeal, Elitaliana argues that the reasoning in paragraphs 41 and 43 of the order under appeal is contradictory inasmuch as the General Court, on the one hand, accepted that the complex legal situation of the contract in question made it difficult to identify the party to whom the measures at issue were attributable and, on the other hand, stated that the provisions of Joint Action 2008/124 were sufficiently clear for Elitaliana to avoid making the mistake of considering Eulex Kosovo to be a ‘body, office or agency of the Union’ within the meaning of Article 263 TFEU.

72 So far as the first part of this ground of appeal is concerned, the Court notes that, under Article 21 of the Statute of the Court of Justice, actions challenging measures of the EU institutions must be formally brought against the institution to which the contested measure is attributable.

73 In the first place, the Court has accepted that the designation in the application of a defendant other than the body responsible for adopting the contested measure does not render the application inadmissible if the latter contains information which makes it possible to identify without any ambiguity the party against whom the application is made, such as the designation of the contested measure and the body responsible for it (see, to that effect, order in Commission v EIB, 85/86, EU:C:1986:292, paragraph 6). When the application is made against a person other than the person to whom the contested measure is attributable, the Court may neither disregard the applicant’s clear intention nor replace it with its own and has no choice but to declare the action inadmissible.

74 In the present case, the General Court, at paragraph 39 of the order under appeal, noted, first, that Elitaliana’s application was, without any ambiguity, made against Eulex Kosovo, which, according to Elitaliana, had the status of a ‘body, office or agency of the Union’ within the meaning of the first paragraph of Article 263 TFEU and, secondly, that Elitaliana had at no point brought an action against any party other than Eulex Kosovo. In those circumstances, the General Court correctly held that the case-law referred to in the previous paragraph of this judgment was not applicable and that it was not required to identify the party against whom the action should have been brought.

75 In the second place, the General Court correctly stated, at paragraph 42 of the order under appeal, that the only possible consequence of the case-law relied on by Elitaliana — more precisely paragraph 19 of the judgment in Schertzer v Parliament, (25/68, EU:C:1977:158) — relating to excusable error, was that an action brought outside the procedural time-limits prescribed for that purpose need not be declared inadmissible. On that basis, it then concluded, implicitly but necessarily, that pleading excusable error served no purpose in the circumstances of the case, since, as found by the General Court, ‘[i]n the present case, it is not disputed that the applicant complied with the time-limit for bringing an action’ and that it at no time brought an action against a party other than Eulex Kosovo.

76 The first part of this ground of appeal must therefore be rejected as unfounded.

77 As regards the second part of the third ground of appeal raised by Elitaliana, the General Court, at paragraph 41 of the order under appeal, accepted that there were some difficulties in identifying the party to whom the measures at issue were attributable and concluded, at paragraph 43 of the order under appeal, that, despite those difficulties, Elitaliana could have avoided the error of bringing its action against Eulex Kosovo.

78 This ground of challenge, which is intended to reopen the question of whether the error made was excusable, must be rejected at the outset, since it is directed against grounds of the order included merely for the sake of completeness and cannot provide any basis for setting the order aside (see, to that effect, Aéroports de Paris v Commission, C‑82/01 P, EU:C:2002:617, paragraphs 41 and 67 and the case-law cited). In fact, the General Court rightly considered, for the reasons already mentioned in paragraph 75 of this judgment, that pleading excusable error served no purpose in the present case.

79 Since the second part of the third ground of appeal has to be declared ineffective, the third ground of appeal must be rejected as partly unfounded and partly ineffective.

80 Since none of the grounds put forward by Elitaliana in support of its appeal can be accepted, the appeal must be dismissed in its entirety.

81 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Eulex Kosovo has applied for costs against Elitaliana and the latter has been unsuccessful in all of its grounds of appeal, Elitaliana must be ordered to pay the costs of this appeal.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Elitaliana v Eulex Kosovo (Judgment) [2015] EUECJ C-439/13 (12 November 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/C43913.html Cite as: ECLI:EU:C:2015:753, EU:C:2015:753, [2015] EUECJ C-439/13

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