Ismeri Europa Srl v Court of Auditors of the European Communities.

• Jurisdiction: European Union
• Celex Number: 61999CC0315
• ECLI: ECLI:EU:C:2001:243
• Court: Court of Justice (European Union)
• Date: 03 May 2001
• Procedure Type: Recurso de casación - infundado
• Docket Number: C-315/99

Important legal notice

|

61999C0315

Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 3 May 2001. - Ismeri Europa Srl v Court of Auditors of the European Communities. - Appeal - MED programmes - Special Report No 1/96 of the Court of Auditors - Principle of the right to a hearing - Naming of third parties - Necessity and proportionality. - Case C-315/99 P.

European Court reports 2001 Page I-05281

Opinion of the Advocate-General

I - Introduction

1. Ismeri Europa Srl (hereinafter Ismeri) brought an application for damages, under Articles 178 and 215 of the EC Treaty (now Articles 235 and 288 EC), for injury allegedly suffered following criticisms made against it by the Court of Auditors in Special Report No 1/96 on the MED programmes.

2. The application made three claims, for:

(1) a declaration that the Court of Auditors had infringed the fundamental principle of the right to a hearing and to proceedings inter partes and had therefore acted unlawfully;

(2) as a consequence of the above, a declaration that the said Community institution was non-contractually liable; and

(3) that the Court of Auditors be ordered to publish the company's observations in the Official Journal of the European Communities and to communicate them officially and formally to the Parliament without delay, affording Ismeri the same right to express its view in respect of the MED programmes as is afforded to the various institutions monitored by the Court of Auditors pursuant to Article 206(1) of the Treaty establishing the European Community.

3. By judgment of 15 June 1999, the Court of First Instance dismissed the application and, by a document submitted on 24 August 1999, Ismeri appealed against the judgment.

II - Facts

4. For the purposes of this appeal, the following facts, contained in that judgment, are particularly relevant:

- The MED programmes form part of the policy of providing aid from the European Union to the Mediterranean non-member countries and are a reflection of the Community's desire to develop multilateral cooperation with and between those countries. They were designed to make it possible to develop specific sectors through decentralised cooperation, on the basis of the approval of projects for which the Commission provides the necessary additional financing and technical assistance.

- The Commission subcontracted the administration and financial management of the funds allocated to the MED programmes to a Belgian non-profit-making organisation created specifically for this task, the Agence pour les réseaux transméditerranéens (Agency for Trans-Mediterranean Networks, hereinafter ARTM). The technical monitoring functions were contracted out to technical assistance bureaux, which are usually consultancy firms.

- Projects are approved by a Commitment Committee, made up of representatives of both the ARTM and the technical assistance bureaux, the latter attending discussions in order to give technical advice but without voting rights. The committee is presided over by the Commission official responsible.

- In Special Report No 1/96, adopted on 30 May 1996, the Court of Auditors severely criticised the management of the MED programmes, referring, in particular, to the confusion of interests in the overall management system. It pointed out that two of the four administrators of the ARTM were, until April 1995, also managers of two technical assistance bureaux responsible for monitoring the programmes; it so happened that those two companies were awarded contracts which they, as members of the management board of the ARTM, had been involved in preparing. One of those two consultancy firms, which were mentioned by name in the report, is Ismeri.

- On 31 January 1997 Ismeri made a request to the Court of Auditors that the inaccuracies contained in the report be rectified. It also considered that it ought to have been consulted before the report was published. The request was denied and it was informed that the correct procedure had been observed. It repeated the request twice, on 24 April and 12 June 1997, and was refused on both occasions.

- At its session on 17 July 1997, the European Parliament adopted a Resolution on Special Report No 1/96 of the Court of Auditors, in which it supported the findings and pointed out that 62% of the expenditure on technical assistance went to two bureaux, the two whose managers were on the board of the ARTM. The Parliament inferred from this that for several years an obvious case of confusion of interests had been in existence, and that the administrators came to be in a situation which could be a criminal offence under the penal code of the Member States concerned. The Parliament ended by pointing out that the case was instructive and called on the Commission, whose credibility is in question, to take forceful measures in order to ensure that similar difficulties did not arise in the case of other cooperation programmes.

- On 20 October 1997 Ismeri lodged the application which has been dismissed by the judgment it is now contesting.

III - The judgment under appeal

5. As to the substance of the action, the judgment of the Court of First Instance is divided into two distinct parts. One deals with the alleged infringement of the principle that proceedings should be inter partes and the other concerns the claim that the criticisms in Special Report No 1/96 of the Court of Auditors are defamatory to Ismeri.

6. With regard to the infringement of the principle that proceedings should be inter partes, the Court of First makes the following observations:

- the unlawful conduct of a Community institution does not suffice to establish the Community's non-contractual liability for financial loss; a person who claims to have suffered damage must prove the fact of the damage and also the existence of a causal link between that conduct and the damage complained of;

- even if the Court of Auditors had been under an obligation to allow Ismeri to make its view known before the adoption of the Special Report and had therefore acted unlawfully by not doing so, the content of the report would have been the same. The Court of First Instance bases that conclusion on the fact that the Court of Auditors refuted all the observations made by Ismeri in its letter of 31 January 1997. It is clear from the tenor of its reply that the Court of Auditors would not have rectified the report if the company had been able to submit its observations before the report was adopted.

7. As regards the defamatory nature of the criticisms of Ismeri contained in the report, the Court of First Instance reasons as follows:

- the concern to ensure that its tasks are properly carried out may lead the Court of Auditors, exceptionally, to make a full report on the facts established and give the names of any third parties involved. The naming of those involved is all the more necessary where anonymity may give rise to confusion or doubt as to their identity, which is liable to harm the interests of those concerned by the investigation of the Court of Auditors but not implicated by its written observations. In any event, the assessments made concerning third parties are fully subject to review by the Court of First Instance and may constitute unlawful conduct giving rise to non-contractual liability on the part of the Community;

- in the exercise of its duties, the Court of Auditors was obliged to report a situation in which a public contract was awarded to a person who had helped to evaluate and select the tenders. Since one of Ismeri's directors was part of the ARTM, the company was in a position to influence the decision-making process and further its own interests. The situation in which Ismeri found itself therefore involved a conflict of interests;

- the statements made in the Special Report concerning Ismeri's reluctance to comply with the Commission's requests that the directors of the two technical assistance bureaux should leave the management board of the ARTM refer to established facts which were correctly interpreted. The Ismeri director resigned from the management board of the ARTM two years after the Commission had requested and after the conditions to which resignation had been made subject, which related to the appointment of a successor and the awarding of a technical assistance contract, had been fulfilled;

- assessment of the quality of the work carried out by Ismeri and of the results achieved is not a criterion which is capable of calling into question the relevance of the observations made by the Court of Auditors in Special Report No 1/96.

IV - The appeal

8. Ismeri divides its appeal into six pleas. In the following lines I shall set out their content and the response given to each by the Court of Auditors. I shall analyse them in Part V of this Opinion.

First plea: flaws in the procedure before the Court of First Instance (failure to rule on the application for a hearing of witnesses and an inadequate preparatory inquiry)

9. Ismeri maintains that the failure of the Court of First Instance to rule on its application for a hearing of witnesses constitutes a procedural irregularity because the Court is required, by general legal principles, to give a ruling on all the matters submitted for its consideration. This implicit refusal to admit proposed evidence constitutes an inadequate inquiry into the matter, in that the Court of First Instance has made it clear that it doubts the credibility of certain documents and has preferred to rely on the version of events given in Special Report No 1/96 of the Court of Auditors.

10. The Court of Auditors contends that this plea is inadmissible, because it seeks to obtain the intervention of the Court of Justice in a sphere - the appraisal of evidence - which does not concern it and which lies within the absolute discretion of the Court of First Instance, unless, in its assessment, it distorts the sense of...