Opinion of Advocate General Lenz delivered on 30 June 1992

1 Original language: German.

2 Third ACP-EEC Convention concluded pursuant to the Decision of the Council and Commission or 24 March 1986, OJ 1986 L 86, p. 1.

3 Burkina Faso, Cape Verde, Chad, Gambia, Guinea-Bissau, Mali, Mauretania, Niger and Senegal.

4 Sec Council Regulation No 282/72 of 31 January 1972 (French. German, Dutch and Italian versions only). JO 1972 L 39, p. 3.

5 OJ 1988 S 62 of 29 March 1988.

6 Reply p. 8.

7 Idem.

8 Judgment in Case 118/83 CMC v Commission [1985] ECR 2325.

9 Application, p. 17.

10 Reply, p. 5.

11 Application, p. 18.

12 Application, p. 10.

13 Application, pp. 15 and 16.

14 Reply, pp. 1 and 2.

15 Judgment in Case 126/83 STS v Commission [1984] ECR 2769.

16 Cited above.

17 Judgment in Case 33/82 Murri Frères v Commission [1985] ECR 2759.

18 Judgment in Case 267/82 Développement SA and Clemessy v Commission [1986] ECR 1907.

19 Lomé II Lomé II Art. 108(2) = Art. 192(2) Art. 120 = Art. 225(3) Art. 122 = Art. 227 Art. 108(5) = Art. 192(4) Art. 121 = Art 226 Art. 123(1)(a) = Art. 228(1)(a)

20 Paragraph 13 of the judgment in STS.

21 See also the order of the President of the Court on the application for interim measures in Case C-257/90 R [1990] ECR I-3841 (paragraph 18), in which it is stated essentially that it is the ICDCS which has the power to decide both for and against the award of a contract.

22 With regard to the procedure to be followed by the committee and the administrative services of the ACP State in question involved in the examination of the tenders, those provisions state as follows: 1. The committee shall propose to the administration the most economically advantagc-ous offer ... 2. For information purposes, the administration shall notify its choice to the tenderer chosen by it by means of a registered letter with a form for acknowledgment of receipt ... The administration shall also send registered letters to the other tenderers informing them that their tenders have been rejected. The administration shall not be required to disclose the reasons for us choice ... 4. If the administration decides to discontinue the invitation to tender, it shall inform all tenderers to that effect. (my emphasis).

23 See, for example, the order of 4 October 1991 in Case C-117/91 Bosman v Commission [1991] ECR I-3353, paragraph 13.

24 Italsolar states on pages 10 and 11 of its application that if the Commission had adopted a clear position (vis-à-vis ICDCS) demonstrating the illegality of the applicant's exclusion, this would undoubtedly have prevented such exclusion. By refusing in its disputed letter to adopt the measures necessary to protect the interests of the applicant, so the argument runs, the Commission took a decision which affected the applicant's legal rights. On page 18 of its application, Italsolar argues that the Commission decision upholding the applicant's exclusion must be declared null and void (it appears from the alternative submissions that the applicant is proceeding on the basis that this decision was communicated in the disputed letter). It is not clear what the relation between these two points of view is. At page 4 in its reply, Italsolar argues that die Commission's letter represents its definitive position on the facts here set out by the applicant and expresses the Commission's refusal to correct the error complained of by the applicant.

25 Seep. 11 of the application.

26 See paragraph 19 of the judgment in STS.

27 Judgment in Case 11/82 Panitkt-Patratki and Olheis v Commission [1985] ECR 207.

28 Sec the Opinion delivered by Advocate General Roemer in Case 8/71 Deutscher Komponistenver-band v Commission [1971] ECR 705, at p. 716.

29 See paragraphs 15, 16 and 42 above.

30 See the orders in Case C-371/89 Emrich v Commission [1990] ECR I-1555, at paragraph 5, and in Case C-72/90 Asia Motor France v Commission [1990] ECR I-2181, paragraph 10.

31 Paragraph 29 of the judgment in CMC.

32 Paragraph 31 of the judgment in CMC.

33 Ibid.

34 Sec the judgment in Case 175/84 Krohn v Commission [1986] ECR 753, in particular paragraph 32.

35 Sec the judgment in Case 4/69 Lattiche v Commission [1971] ECR 325, in particular paragraph 6.

36 LIT 478624000 as the cost of participating in the tender procedure and 15% of the price tendered for each lot as profit lost (the prices for each lot arc set out in Annex 5 to the application).

37 Judgment in Case 25/62 Plaumann v Commission [1963] ECR 95; sec also the judgment in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061, paragraphs 10 and 11.

38 Established case-law of the Court: see, for example, the judgment in Case C-87/89 Sonito and Others v Commission [1990] ECR I-1981, paragraph 16.

39 Paragraph 38 above.

40 Paragraph 46 above.

41 See paragraph 10 above; Annex 6 to the application.

42 That is the global comment in the reply concerning Lot No 3. With regard to Lot No 2, Italsolar points out that it treated Lots Nos 2 and 3 as constituting a single unit for the purposes of the investment required for after-sale service.

43 See paragraph 8 above.

44 See paragraph 5 above.