Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In an application lodged at the Court Registry on 29 September 1982, two French construction undertakings, Développement SA and Société Clemessy, charge the Commission of the European Communities with acting in such a way as to deprive them of the award of the contract for the construction of the building for the Somali Pharmaceutical Institute. They consequently seek an order from the Court pursuant to Article 178 and the second paragraph of Article 215 of the EEC Treaty requiring the Commission to pay them the sum of FF 1202754 by way of compensation for the damage which they have allegedly suffered.

2. In the light of those facts, the applicants maintain that the Commission is liable for depriving them on two occasions of a contract for which they had tendered successfully and claim compensation for all the costs incurred by them in Europe and in Somalia throughout the tendering procedure.

3. I now turn to the substance of the case. According to the applicants, the Commission is liable by virtue of its wrongful acts and, in the alternative, it is strictly liable. They rely on four submissions in support of their primary contentions, namely that the Commission has:

4. That brings me to the first and fourth submissions which are based essentially on the premise that on two occasions, namely 28 June 1980 and 14 May 1981, the awarding authorities declared Sopha Développement the successful tenderer. By systematically criticizing the suitability and the quality of the tender submitted by Sopha Développement, without however making public the reasons for its criticisms, the Commission induced those authorities to reverse their decision and thus favoured the competing undertaking which finally secured the contract. Such conduct is contrary to Article 56 (1) of the First Lomé Convention, which lays down the principle that participation in tendering procedures for projects financed by the Fund is open to all undertakings on equal terms, and to Article 21 of Protocol No 2 to the First Lomé Convention, which provides that the tender selected must be economically the most advantageous.

5. On the basis of the foregoing considerations, I suggest that the Court should declare that the application submitted on 29 September 1982 by Développement SA and Société Clemessy is admissible but should dismiss it as unfounded. Pursuant to Article 69 (2) of the Rules of Procedure, the applicants should be ordered to pay the costs.

1 Translated from the Italian.