Judgment_paragraph 5 · Geotronics SA v Commission of the European Communities (C-395/95 P)

5The Court of First Instance dismissed the action for annulment of the decision contained in the letter of 10 March 1994 as inadmissible on the following grounds:27. It should be noted, first, that under the basic regulation for the PHARE Programme, aid is granted by the Community either independently or in the form of co-financing with the Member States, the European Investment Bank, third countries or multilateral bodies or the recipient countries themselves.28. Secondly, aid granted under the PHARE Programme is funded by the general budget, in accordance with the Financial Regulation, as amended in particular by Regulation No 610/90, Title IX of which relates to external aid.29. By Articles 107 and 108(2) of Regulation No 610/90, measures and projects funded under the Community's cooperation policy are implemented by the beneficiary country in close collaboration with the Commission, which, as the body administering the aid, grants credits and ensures that participants in tendering procedures can compete on an equal footing, that there is no discrimination and that the tender selected is economically the most advantageous.30. Nevertheless, under Article 109(2) of that regulation, it is for the beneficiary country to issue invitations to tender, receive tenders, preside over the examination of tenders and establish the results of the tendering procedure. It is also for that country to sign contracts, additions to contracts and estimates and notify the Commission thereof. It follows that the power to award a contract lies with the beneficiary country under the PHARE Programme. In that respect, the applicant's representative conceded at the hearing that, in this case, the Romanian Government was free to award the contract to Geotronics, notwithstanding the Commission's refusal to grant it Community aid.31. It follows from that division of roles that contracts financed by the PHARE Programme must be regarded as national contracts, which are binding only on the beneficiary country and the economic operator. The preparation, negotiation and conclusion of the contracts take place between those two partners only.32. By contrast, no legal relationship arises between the tenderers and the Commission, since the latter restricts itself to taking funding decisions on behalf of the Community, and its measures cannot have the effect, in relation to tenderers, of substituting a Community decision for the decision of the beneficiary country under the PHARE Programme. In this area, therefore, there can be no Commission decision, so far as tenderers are concerned, which is capable of forming the subject-matter of an action under the fourth paragraph of Article 173 of the EC Treaty (see, by way of analogy, the judgments in Case 126/83 STS v Commission [1984] ECR 2769, paragraphs 18 and 19; Case 118/83 CMC and Others v Commission [1985] ECR 2325, paragraphs 28 and 29; Case C-257/90 Italsolar v Commission [[1993] ECR I-9], paragraphs 22 and 26; and Case C-l82/91 Forafrique Burkinabé v Commission [[1993] ECR I-2161], paragraph 23).33. Therefore, despite the terms used by the Commission, the letter of 10 March 1994 in which it informed the applicant that it was obliged to reject its tender on account of the non-Community origin of the equipment cannot be regarded as a Commission decision which produced binding legal effects capable of affecting the legal position of the applicant.34. A further point, moreover, is that the annulment of the Commission's letter of 10 March 1994 would not avail the applicant in any event, since it could not in itself call in question the contract between the Romanian Government and the German firm to which the contract was awarded.35. The claim for the annulment of the Commission's letter of 10 March 1994 must therefore be rejected as inadmissible.’