Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

The German undertaking, H. P. Gauff [hereinafter referred to as GaufPJ, which specializes in the field of transport and hydraulic installations, has since 1965 carried on business in the African States associated with the European Economic Community. It has participated in particular in the implementation of various projects financed by the European Development Funds set up by the two Yaounde Conventions of 1964 and 1969.

Since about 1973 it was excluded from invitations to tender or from mutual agreement contracts for the provision of services under those conventions, and, since 1975, under the two ACPEEC Conventions of Lomé of 1975 and 1979.

The manager of the undertaking, Helmut P. Gauff, sent a request on 13 January 1976 to the Director General of the Directorate General for Development and Cooperation of the Commission of the European Communities to be placed on the list of approved suppliers in order to participate in an award procedure in Zaire.

By a letter of 9 February 1976 the Director General refused that offer of services, adding that he did not think it necessary to explain to Helmut Gauff the reasons for this.

Gauff renewed its request on 3 December 1976 but received the reply, again from the Director General, that the procedure for the selection of consultancy bureaux working on projects for the European Development Fund within the framework of the Convention of Lomé of 1975 differed from that previously existing within the framework of the Convention of Yaounde of 1969.

Since Gauff found that it continued to be excluded it sent a formal request through its lawyer, on 21 April 1980, to the Director General of the Directorate General for Development asking him to inform it whether or not it was again considered eligible for and could be permitted to participate in carrying out projects financed by the various European Development Funds.

The Director General of the Legal Department of the Commission replied that it was not possible to give it that assurance.

Different reasons were given at various times for the refusal of Gauff's request. After the uniformative reply of 9 February 1976 the request of the undertaking is said to have been transmitted to the competent department for this field (reply of 22 December 1976) and, finally, it was said that the selection of candidates is made from case to case, having regard to all circumstances (reply of 20 June 1980).

In fact there was a single reason underlying the refusal with which Gauff met. In an aide-memoire drawn up on 22 December 1977 the Director General of the Directorate for Development, who had a meeting on 12 December 1977 with two representatives of the undertaking at their request, had explained to them that all the decisions concerning the award of contracts were taken case by case on the basis of specific criteria which are laid down by the financial regulation and are binding on the Commission. However, the Director General also made it clear to his interlocutors that so long as the persons in charge of the Gauff undertaking are the same as those who were in charge at the time when the undertaking corrupted an official of the Commission the undertaking would be excluded from public contracts financed by the European Development Funds.

Gauff was well aware of that reason since its lawver wrote, in his letter to the Director General of 21 April 1980, before discussing whether the reason was well founded: my client appears to be excluded because of an incident which took place in 1968 involving a former employee of the Commission. It appears that this person left the Commission in 1975 following disciplinar)' proceedings. It seems that he was charged with having agreed in 1968, in his capacity as an official of the Commission, to pass on, on behalf of Gauff, commissions and other sums of money to high-ranking Africans.

These are circumstances of fact on the basis of which Gauff requests the Court, bv an application lodged on 25 August 198C:

Several problems arise, and first of all on the matter of formal status. Does the letter addressed to Gauff on 20 June 1980 by the Director General of the Legal Department constitute a measure adopted by the competent authority? There are grounds for doubting this. It should further be observed that Gauff is not asking for a declaration that a decision rejecting a tender submitted by it in response to a specific invitation to tender, as was the case in January 1976, is void.

Nevertheless, even though the reply of 20 June 1980 only confirms, with new arguments, a factual situation, that situation exists. A general and permanent exclusion is applied to Gauff and the Director General considered in his aide-memoire of 22 December 1977 that the alteration of the legal structure of the applicant's business, which was changed in 1970 from a one-man firm [Einzelfirma] into a limited parnership [Kommanditgesellschaft], made no difference to the actual exercise of managerial power in the undertaking. That constitutes a statement of attitude clearly imputable to the Commission which, moreover, it has adopted in its pleadings.

This situation adversely affects Gauff whenever a procedure for the award of a contract by mutual agreement or on invitation to tender is initiated in which it might compete with a hope of success were it not for the complaint against it. Gauff thus has an interest in obtaining clarification of its legal position (judgment of 17 March 1971 in Case 47/70 Kschwendt [1971] ECR 257).

The restricted invitation to tender and mutual agreement contracts are the usual procedures for the award of those contracts for services (studies, technical assistance and supervision of works) which constitute the very objects of the Gauff undertaking. They appear more appropriate to the provision of services which constitute a very special type of provision.

The restricted invitation to tender is open only to candidates which the contracting authority decides to consult, possibly after a preselection procedure decided inter alia on the particular nature or importance of the services to be carried out. In drawing up the restricted list the Commission and the ACP State concerned cooperate closely. Even though it is for the ACP State receiving the aid ultimately to choose from the restricted list the undertaking with which it intends to conclude the contract entry on that list is a necessary condition for winning the contract in question and the award of the contract must be approved by the chief authorizing officer of the European Development Fund who, from the beginning, has been the Director General of the Directorate for Development.

The contract is designated a mutual agreement contract where the contracting authority enters freely into such discussions as it may consider useful and allots the contract to the undertaking or supplier whom it has chosen. In this case the list of candidates selected in advance is drawn up by the Commission alone.

By definition such procedures confer upon the Commission a wider discretion than in the case of invitations to tender which entail a public invitation to compete. The Court of Justice must respect the discretion which the contracting authority must have in order to safeguard the general interest. Nevertheless it has jurisdiction to review the judgment of the departments of the Commission in order to decide whether there is any misuse of powers or a serious and manifest error of judgment (judgment of 23 November 1978 in Case 56/77 Agence Européenne d'Intérims [1978] ECR 2223, paragraph 20 of the decision).

It is therefore appropriate to consider, within those limits, whether the submissions and arguments of Gauff are well founded.

The outcome of the claim for damages submitted by Gauff depends on whether its exclusion was well founded.

I have said that the exclusion appeared to me to be justified. The behaviour of certain officials of the Commission which is alleged to have caused the damage (adverse effect on the applicant's business standing and loss of opportunities) in respect of which the applicant claims purely nominal compensation is denied by the Commission. In any event I do not think that the certainty of the damage and the causal relationship between the damage and the behaviour has been established.

I am accordingly of the opinion that the application should be dismissed and that Gauff should be ordered to pay the costs.

1 Translated from the French.