Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . The undertaking Spie-Batignolles asks the Court to order the Commission to pay compensation under Article 178 and the second paragraph of Article 215 of the EEC Treaty for damage which it sustained on account of the wrongful conduct of Commission departments in connection with the preparation and implementation of two contracts for works concluded between the Republic of Rwanda and Spie-Batignolles for the construction of two roads in Rwanda .
2 . In 1978 the applicant concluded two contracts with the Rwandan authorities for the construction of a road from Kigali to Butare ( Lot No 1 ) and from Butare to the frontier with Burundi ( Lot No 2 ). Those projects were financed by the European Development Fund (" EDF ") by virtue of the "financial and technical cooperation" introduced by the First ACP-EEC Lomé Convention (" Lomé I "). ( 1 ) The implementation of the two contracts was fraught with a great many difficulties . Lot No 2 was finally completed and handed over on 6 June 1981 . On the same day the Rwandan authorities cancelled the contract for Lot No 1 on grounds attributable to the applicant . The arbitration procedure which took place with regard to both contracts between Spie-Batignolles and the Rwandan authorities before the Arbitration Tribunal of the International Chamber of Commerce resulted inter alia in five partial pronouncements of 30 May 1986 in which a number of the claims of Spie-Batignolles for the payment of compensation and for extra time in which to carry out the work were declared to be in part well founded . On 24 February 1987 it was held in a sixth award that the contract for Lot No 1 had been improperly cancelled and that the Rwandan authorities had also been guilty of a number of breaches of contract in implementing both lots . It was held that the applicant was entitled in principle to damages; as yet no pronouncement has been made concerning the exact amount of compensation to be paid by Rwanda .
I would refer to Section I(B ) of the Report for the Hearing for more particulars of the factual and procedural background to the case . I shall refer back to that information only in so far as it is necessary in order to illustrate or substantiate my appraisal .
3 . The applicant asks the Court to declare the Commission liable jointly and severally or in solidum for such amounts as result ( or may still result ) from the aforesaid arbitration proceedings . In the alternative, it asks that the Commission be declared liable for part of those sums . ( 2 ) The Commission raised two objections with regard to the applicant' s application, which the Court decided, by decision of 26 February 1987, to join with its consideration of the merits . More specifically, the Commission argued that the applicant' s application was time-barred and inadmissible owing to absence of subject-matter .
The objection that the action is out of time
4 . The Commission argues that the applicant' s claim for compensation is out of time under Article 43 of the Statute of the Court of Justice of the European Communities in so far as more than five years elapsed between the last action by the Commission or its delegate at Kigali which could cause it to incur liability ( a meeting held on 15 May 1981 attended by both the Commission and the applicant ) and the applicant' s formal request of 5 June 1986 which the Commission received on 6 June 1986 . ( 3 )
5 . The Commission' s argument is based on the wording of Article 43 of the Statute of the Court, which provides as follows :
"Proceedings ... in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto ".
However, as the applicant rightly points out, Article 43 must be interpreted in the light of the Court' s case-law . In the first Birra Wuehrer judgment the Court made it clear that the five-year period
"cannot begin before all the requirements governing an obligation to provide compensation for damage are satisfied and in particular before the damage to be made good has materialized . Accordingly, since the situations concerned are those in which the liability of the Community has its origin in a legislative measure, the period of limitation cannot begin before the injurious effects of that measure have been produced ...". ( 4 )
6 . Applied to the present case ( which is concerned with liability of the Community not having its origin in a legislative measure ) that principle signifies that the applicant may challenge measures of the Commission whose injurious effects materialized on or after 6 June 1981 . ( 5 ) It is therefore a question of examining when exactly the injurious effects with regard to the applicant occurred . However, in order to do so it must first be established for what damage the applicant is seeking compensation .
The applicant complains that it suffered damage in two ways as a result of the Commission' s conduct . In the first place, it claims that the Commission' s conduct impeded the successful execution of the two lots and, as a result, caused it to incur a number of additional costs : it is alleged to have held up the work and caused unnecessary or additional work to be carried out . In its view, those additional costs are the result of three different wrongful acts or omissions on the part of the Commission . It upset the execution of the work by approving a defective tender dossier; it delayed or even "impeded" the work by imposing an unfounded requirement for administrative orders to be countersigned, thereby wrongfully interfering with the task of the National Authorizing Officer; it failed to effect the adjustment measures necessary in order to obviate the unsuccessful outcome of the two projects, namely a fundamental review of the tender dossier and of the amount of credit .
7 . It clearly emerges from the documents before the Court as regards that first class of damage that the injurious effects of the Commission' s failure to act had already materialized before 6 June 1981 . As far as the alleged flaws in the tender dossier are concerned, the applicant asked the Rwandan authorities as early as 6 December 1980 to cancel the contracts for the two lots as a result of the wrongful conduct of the Rwandan administration, inter alia on the ground that the flaws in the tender dossier gave rise to serious difficulties of implementation . ( 6 ) As for the request by the Commission' s delegate to countersign administrative orders, that was made as far back as 3 August 1978 . ( 7 ) On the assumption that that caused a delay in the work, that delay materialized from the time when the administrative orders were handed over for countersigning : the last administrative order was countersigned by the Commission' s delegate on 29 July 1980 . ( 8 )
As far as interference with the duties of the National Authorizing Officer is concerned, the most recent action described by the applicant as wrongful was the alleged imposition by the Commission' s delegation at the site meeting held on 19 February 1980 of a number of modifications in the execution of the work . The difficulties in carrying out the work which that allegedly caused had undoubtedly already materialized ( and were known to the applicant ) when it requested the Rwandan authorities to cancel the contracts in December 1980, as mentioned above : it refers in those requests to the complete disorganization of the work . ( 9 ) It is on account of precisely the pecuniary consequences of that state of affairs that the applicant claims compensation in the arbitration procedure and in these proceedings .
As regards the failure to take the necessary adjustment measures, in its reply the applicant exhaustively describes its approaches to the Commission, which it requested to take certain measures . It explains that it first requested the Commission to intervene on 3 April 1979, regularly repeating that request, the last time on 24 March 1981 . In any event, the Commission acted on that request and sent a technical team out to Rwanda in the early months of 1981; but at a meeting no solution was found to the problems encountered . ( 10 ) Here, too, it seems to me to be difficult to deny that the "disastrous situation" alleged to have been brought about by the Commission' s failure to act already existed at the time of the requests to cancel the contract which the applicant made in December 1980 to the Rwandan administration . ( 11 )
It appears from the whole of the foregoing that the injurious effects of the aforementioned Commission conduct actually took place more than five years before the applicant lodged its application . The applicant has not denied this, but maintains that all the quantifiable elements of the damage sustained by it did not come about before 6 June 1981 . However, that seems to me to rely on a wrong interpretation of the judgment in Birra Wuehrer, cited above . In that judgment the Court held in fact that the limitation period laid down by Article 43 of the Court' s Statute begins to run as soon as the injurious effects of the contested measure have materialized . That means that it is no longer a question of potential damage in the abstract but of definite and actual damage, even if the precise extent and exact magnitude of the damage is not yet established . ( 12 ) Nevertheless there is no requirement that all the injurious effects of the contested measure should already have taken place and/or the whole of the damage should have already been consolidated, or in other words that there can be no further change in the elements of the damage or in its magnitude .
The applicant nevertheless claims that the Commission took injurious measures even after 6 June 1981 : in October 1981 it wrongfully intervened in the ( re-)allocation of the contract for Lot No 1 to the undertaking Colas . However, that last action on the part of the Commission is to be situated in the context of the cancellation by the Rwandan authorities of the contract for Lot No 1 ( 13 ) and is not such as to suspend the running of the limitation period with respect to the aforesaid conduct of the Commission . I therefore consider that the applicant' s claim to compensation is time-barred in so far as it seeks compensation for the additional costs incurred by it as a result of the alleged wrongful conduct of the Commission .
8 . In the second place the applicant claims compensation for the damage sustained by it as a result of the cancellation of the contract for Lot No 1 by the Rwandan authorities ( as a result of which it was not paid in full and a number of securities provided by it were forfeit ). The applicant claims that the Commission should be held to be jointly and severally liable for all or part of the damage sustained by it as a result of the said cancellation . As far as that point is concerned, the applicant' s claim does not seem to me to be time-barred because the damage for which it seeks to be compensated can obviously only have materialized at the time of cancellation, namely 6 June 1981, which is precisely five years before the date on which the applicant lodged its formal request with the Commission . The next part of my examination will therefore address itself primarily to the more limited question whether the Commission can be held liable for damage suffered by the applicant as a result of the cancellation by the Rwandan authorities of the contract for Lot No 1 . Nevertheless, my subsequent remarks with regard to the objection of inadmissibility ( Sections 9 and 10 below ) and my introductory remarks on the investigation of the substance ( Sections 11 to 15 below ) also apply mutatis mutandis to the first category of damage with regard to which I consider the applicant' s claim to be time-barred .
In case the Court should nevertheless consider that the applicant' s claim to compensation is not time-barred with regard to the first category of damage either, I shall briefly examine as an ancillary question at the end of my Opinion the question whether the Commission can be held liable for that damage .
The objection of inadmissibility
9 . As has already been mentioned, the applicant claims that the Commission should be ordered to compensate for the damage which is the subject of the arbitration proceedings before the International Chamber of Commerce . In the light of that claim the Commission argues that in the absence of an arbitral award on the applicant' s claims with regard to the Rwandan authorities, the subject-matter of this application cannot ( yet ) be defined sufficiently clearly and precisely and that for those reasons the application is inadmissible . In addition, it maintains that there is no evidence of a causal link between the - as yet unknown - damage and the allegations made against the Commission .
10 . I do not agree with that argument . In the judgment of 2 June 1976 in Kampffmeyer ( 14 ) the Court held that an action under the second paragraph of Article 215 of the Treaty will lie even in the case of
"imminent damage foreseeable with sufficient certainty ... (( where )) the damage cannot yet be precisely assessed" ( paragraph 6 ),
on the ground that
"to prevent even greater damage it may prove necessary to bring the matter before the Court as soon as the cause of damage is certain" ( paragraph 7 ). ( 15 )
In this case, there is no doubt that the damage for which the applicant seeks to be compensated was imminent and foreseeable with sufficient certainty when the action was brought . Contrary to the Commission' s view it is not necessary to await the outcome of the arbitration proceedings in order to know the subject-matter of the present proceedings : the applicant' s action was brought to obtain compensation for damage which it claims from the Rwandan authorities in the arbitration proceedings . Although the precise extent of that damage could not be determined when this action was brought ( and the damage in respect of which compensation is payable has since still not been fully determined in the arbitration proceedings ), it is clear that the damage was not only imminent but had actually occurred, since the applicant incurred additional costs ( Section 7 above ) and the contract was cancelled by the Rwandan authorities ( Section 8 above ).
Furthermore, the alleged absence of a causal connection between that damage and the conduct of which the Commission is accused cannot cause the application to be inadmissible for lack of subject-matter : what is involved here is an element of the examination of the substance . Consequently, the Commission' s objection of inadmissibility should be dismissed .
Introduction to the examination of the substance
11 . It hardly needs mentioning that in order for there to be Community liability the applicant must adduce evidence of the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a direct link in the chain of causality between the wrongful act and the damage complained of . ( 16 ) I shall therefore consider whether and to what extent the applicant has discharged its evidential burden in respect of each of those points . However, I shall not do so in the customary order : I shall first investigate the question of causality ( Sections 16 to 18 below ), since that analysis will show the evidential burden to be discharged by the applicant with regard to the unlawfulness of the Commission' s conduct . In addition, it is necessary for the sake of the clarity of the investigation that I should go first of all into the question whether and on what conditions the damage alleged by the applicant qualifies for compensation under the second paragraph of Article 215 of the Treaty .
12 . As I have already mentioned, the applicant claims that the Commission should be ordered to compensate jointly and severally or in solidum for the damage which is the subject of the arbitration proceedings between Rwanda and the applicant .
It is therefore plain that in these proceedings the applicant is concerned with compensation for contractual damage and hence an important prior question arises : does Article 215 of the Treaty allow the Court to hold the Community liable for that kind of damage on grounds of "wrongful" non-contractual conduct? It appears from comparative research into the legal situation in the Member States effected by the Court' s Research and Documentation Division that in the great majority of the Member States it is accepted that where it is proved that a breach of contract ( for argument' s sake, the conduct of the Rwandan authorities ) and an act or omission giving rise to non-contractual liability ( for argument' s sake, the conduct of the Commission ) gave rise to the same damage, the perpetrators of both the contractual and non-contractual faults may be held liable in solidum for the damage . Naturally, the injured party must adduce evidence of wrongful conduct ( giving rise to contractual or non-contractual liability, as the case may be ) on the part of both wrongdoers and evidence of a causal connection between each party' s conduct and the ( same ) damage for which compensation is sought .
I would suggest that the Court start from the concept of in solidum liability, because that appears to be consonant with "the general principles common to the legal orders of the Member States", while pointing out that it is not a question in this case of "contractual damage" as far as the party responsible for the conduct giving rise to non-contractual liability is concerned but of an obligation arising out of the damage caused by it which, as far as the injured party is concerned, is also of a contractual nature .
13 . Admittedly in the judgment of 19 September 1985 in Murri frères, ( 17 ) a case involving similar facts, the Court held that where the damage of which an applicant complains results "primarily" from the refusal by the ACP State to comply with the contract and the applicant has not settled the contractual dispute by recourse to the arbitration procedure provided for, the applicant cannot establish that the Commission' s conduct caused it to sustain damage distinct from the damage sustained in connection with the contract . ( 18 ) Nevertheless, it cannot be directly inferred from that judgment that the Community can never be held liable for damage for which compensation is also claimed from the other party to the contract . It appears to me to signify only that where an injured party does not take the necessary ( prescribed ) steps to establish the liability of the other party to the contract and the amount of contractual damage, it cannot prove damage resulting from the Community' s non-contractual acts or omissions . Consequently, the judgment in Murri frères does not appear to me to preclude the possibility of seeking to hold the Community ( jointly and severally or in solidum ) liable under the second paragraph of Article 215 of the Treaty for contractual damage ( caused and to be compensated by a party to the contract ) where the person claiming such damage establishes by the prescribed means ( in this case, by means of arbitration ) the existence and magnitude of the contractual damage for which contractual liability exists on the part of the party to the contract . This makes it possible for the Court to demarcate the Community' s non-contractual duty of compensation from the contractual duty of compensation of the other party to the contract even if subsequently the Community is to be held to be liable in solidum because the same damage is involved .
In this case it appears to me that the conditions laid down in the judgment in Murri frères are satisfied . The applicant has completed in full the procedure of the Arbitration Tribunal of the International Chamber of Commerce in accordance with the specific terms and conditions of the contract . The Arbitration Tribunal has ruled that the contract for Lot No 1 was improperly cancelled by the Rwandan authorities and that Rwanda committed a number of breaches of contract in the implementation of both lots . In a subsequent award the Arbitration Tribunal is to rule on the precise extent of the damage sustained by the applicant as a result . I therefore take the view that prima facie its application for compensation for damage under the second paragraph of Article 215 of the Treaty is not precluded .
14 . Another question is whether the fact that a party other than the Community has already been ordered to compensate for the damage sustained causes the Community' s obligation to compensate for the damage to disappear . ( 19 ) In this case, too, the law of the majority of the Member States suggests that the question must be answered in the negative : it is not the fact of being held liable but only the actual discharge of the debt to the injured party which relieves the perpetrator of a wrongful act vis-à-vis the injured party of his obligation of compensation . I therefore conclude that the award of the Arbitration Tribunal in the arbitration proceedings between the applicant and the Rwandan authorities, irrespective of the amount of the damage for which the latter is held liable, does not stand in the way of the action for compensation for damage brought by the applicant against the Commission, as long as it does not appear that the Rwandan authorities have complied with the arbitral award .
In case the Court should hold that the Commission is bound in this case to compensate for the damage in solidum, a problem would arise with regard to the division of liability and possibly even a claim of recourse between the Community and the Rwandan authories; I shall not go into this question in view of the outcome of my investigation . ( 20 )
15 . Now I have reached the conclusion that the second paragraph of Article 215 does not preclude ruling on the applicant' s claim, I can commence my investigation of the substance . As I have already stated, I shall chiefly be concerned with the question whether the Commission can be held liable for the damage sustained by the applicant as a consequence of the cancellation by the Rwandan authorities of the contract for Lot No 1 ( Sections 16 to 33 below ). I shall also briefly consider the question whether the Commission can be held liable for the other damage to which the applicant' s claim relates ( Section 34, below ).
The causal connection
16 . I realize that it is unusual to examine the causal connection before considering the lawfulness of the Commission' s conduct . Nevertheless I believe that I have a good reason for taking that approach : a careful analysis of the question of causality will show of what the evidential burden on the applicant in these proceedings precisely consists .
17 . Where, such as in this case, the damage was preceded by the interaction of the conduct of several parties ( the applicant itself and the Commission, but also the Rwandan authorities and the German engineering consultants Rhein-Ruhr, who were commissioned by the latter ), the establishment of causal links often poses delicate problems . I shall refer to two principles . As a rule of thumb it can be said that the requisite causal link is lacking where the damage sought to be compensated would also have occurred, and in the same way, in the absence of the unlawful conduct . ( 21 )
The second principle has to do with the limited scope of this investigation : the possibility of the Commission' s being held liable jointly and severally or in solidum for the damage which the applicant sustained as a result of the unilateral cancellation of the contract for Lot No 1 by the Rwandan authorities . Now, the Court has already held that where an economic agent sustains damage as a result of an autonomous decision of a State ( in that case, a Member State ) ( that is to say, prompted exclusively by an appraisal by the authorities of that State themselves, and without any action on the part of a third party ), the Community cannot incur liability for the damage sustained . ( 22 )
18 . Applying those two rules to this case I conclude that the Commission can incur liability for the damage sustained by the applicant only if :
( i)it can be proved that the Commission was an "accessory" to the cancellation of the contract by the Rwandan authorities, that is to say that it intervened in Rwanda' s decision-making by encouraging or imposing the cancellation of the contract . I shall consider that eventuality, which relates to the Commission' s conduct on the occasion of the cancellation of the contract, in Sections 22 to 25 below; or
( ii)on the assumption that the cancellation was an independent decision of the Rwandan authorities, it can be proved that the decision to cancel the contract can nevertheless be imputed to the Commission because it in fact played the part of ( co-)contracting authority for the project . That would be so if the Commission and/or its delegate de facto partly or wholly took the place of the Rwandan authorities or the "leading official" during the execution of the project . I shall consider that hypothesis in Sections 26 and 27 below; or
( iii)it can be proved that the Commission' s conduct made the cancellation of the contract by the Rwandan Government inevitable . That might be the case, for example, if it is assumed that the flaws in the geotechnical report gave rise to the unsuccessful outcome of the project ( and ultimately to the cancellation of the contract ) and the responsibility for those flaws can be imputed to the Commission . I shall deal with that hypothesis in Sections 28 and 29 . I should mention straight away that I use the term "inevitable" advisedly, because in my view it is not sufficient that the Commission' s conduct should have "jointly contributed" to the unsuccessful outcome of the project . Earlier I said that the Community cannot incur liability for damage which is the result of an autonomous decision of a ( Member ) State . ( 23 ) It therefore must be shown that as a result of the act of a third party ( in this case, the Commission ) there can be no question of such an autonomous measure being involved; or
( iv)it can be proved that the conduct ( i.e . intervention ) of the Commission could have prevented the cancellation of the contract and the Commission was under a duty to intervene in that sense . I shall discuss that possibility in Sections 30 to 33 below .
I shall now examine the applicant' s arguments with regard to the alleged wrongful conduct of the Commission in the light of those findings concerning the evidential burden on the applicant .
Assessment of the Commission' s conduct
19 . I shall preface my discussion of the Commission' s conduct with a succinct review of the legislative framework of the first ACP-EEC Convention of Lomé, primarily as regards the role reserved for the Commission by its provisions . The lawfulness of its conduct must be assessed against that background . Later in my appraisal I shall - where necessary - go deeper into some of those provisions .
The "financial and technical cooperation" between the Community and the ACP States pursuant to which the contested project in Rwanda was arranged is governed by Articles 40 to 61 of Lomé I . It is essential as far as these proceedings are concerned to bear in mind that under the Convention the allocation of powers and duties between the Community and the relevant ACP State differs in the "preparatory phase" from the allocation of powers and duties in the "implementation phase ".
20 . By "preparatory phase" I have in mind the phase in which a given project is identified and proposed and which culminates in the decision to implement and finance it . It is important that that preparatory phase does not take in the planning of the practical implementation of the project . The only appraisal made in that phase relates to the extent to which the project is technically and financially feasible and socially and economically sound in the light of the objectives of the Convention and the specific development objectives of the ACP State concerned . The preparatory phase includes in particular the drawing up of an indicative programme, ( 24 ) which forms the framework within which the actual project is subsequently to be planned and executed . Proposals for actual projects are prepared and proposed by the relevant ACP State; if it so requests, the Community may provide technical assistance for drawing up the dossiers . ( 25 ) Subsequently an appraisal is carried out of the extent to which the proposals qualify for financial assistance; that question is appraised by the Community in close collaboration with the ACP State concerned . ( 26 ) That appraisal constitutes in fact a "viability analysis" with regard to the financial and technical feasibility of the project and whether the project is socially sound, and so on . On the basis of that viability analysis the Community and the ACP State concerned draw up a financing proposal which is submitted to the competent departments of the Community for approval . ( 27 )
21 . If the financing proposal is approved by the Community, the project then goes into the "implementation phase ". Then, in contrast with the preparatory phase, more emphasis is placed on the principle of respecting the sovereignty of the ACP State concerned . Accordingly, Article 55 of Lomé I provides as follows :
"The ACP States ... shall be responsible for the execution of projects financed by the Community . Accordingly, they shall be responsible for negotiating and concluding works and supply contracts and technical cooperation contracts ".
The execution of the contract is directed by the official appointed by the ACP State and/or a expert appointed by that State ( in this case the German engineering consultants Rhein-Ruhr ). ( 28 )
Admittedly the principle of "close collaboration" between the Community and the ACP State concerned also applies in the implementation phase . However, unlike in the preparatory phase, there is a clear division of powers : the Community' s role ( carried out by the Commission ) consists in managing the funds assigned to the project, ( 29 ) whilst the conclusion and execution of the project falls to the ACP State . ( 30 ) That distribution of responsibilities has been repeatedly confirmed and elucidated in the case-law of the Court . The Court has emphasized the fact that contracts qualifying for assistance from the EDF remain national contracts in the sense that the authorities in the various ACP States alone are responsible for preparing, negotiating and concluding them . The Commission' s role is confined to taking the financing decisions in order to implement the projects determined in consultation with the ACP States; it would be incompatible with the sovereignty of those States and the responsibilities reserved to them by the Convention for the Commission to deal directly with undertakings awarded contracts, which in fact have legal relations only with the ACP State responsible for the contract . ( 31 ) Nevertheless, that legislative framework does not exclude the possibility of third parties sustaining damage as a result of measures or conduct of the Commission in connection with the execution of those projects; such persons may, if they consider that the Commission' s conduct is wrongful, bring an action under Article 178 and the second paragraph of Article 215 of the Treaty . ( 32 )
In the light of the foregoing I can now commence my appraisal of the Commission' s conduct . A twofold question will be central to that exercise : first, is wrongful conduct involved and, secondly, is that conduct such as to render the Community ( jointly ) liable for the cancellation of the contract by the Rwandan authorities?
First hypothesis : the cancellation of the contract was encouraged, instigated or imposed
22 . In the case of this hypothesis, a wrongful act on the part of the Commission can be involved only if it is proved that the Commission or its delegate wrongfully encouraged, instigated or imposed the Rwandan Government' s decision to cancel the contract . That is to say, the wrongful character of the act must be assessed in the light of the division of powers between the Commission and Rwanda which has been adumbrated above .
I would also make it clear from the outset that for the purposes of the following appraisal it is not directly relevant whether the cancellation of the contract by Rwanda was unlawful ( as the Arbitration Tribunal held ) or lawful . The question is whether the fact that the damage ( the cancellation of the contract ) came about can be imputed to the Commission, irrespective as to whether the actual cancellation of the contract is or is not to be regarded as an unlawful act . Rather, the award of the Arbitration Tribunal ( assuming that it is endorsed by the Court ) might be indirectly relevant . In the event that the Commission' s "complicity" in the cancellation of the contract is proved, the endorsement of the award prevents in particular the Commission from maintaining in its defence that it took part only in a lawful cancellation and no wrongful act on its part can therefore be involved .
23 . The applicant has not claimed that the Commission imposed the cancellation of the contract on the Rwandan authorities . Rather, it maintains that the Commission incited, or at least encouraged, Rwanda to cancel the contract . However, the evidence adduced by the applicant in support of that claim is particularly scanty . It states that the decision to cancel the contract was taken in "particularly abusive circumstances" (( sic )) by the Rwandan Minister for Foreign Affairs following an unsuccessful meeting intended to effect a reconciliation at which not only the applicant and Rwanda, but also the Commission, were represented . ( 33 ) It maintains that after cancelling the contract the Rwandan Government entrusted the completion of the project by means of an "unlawful" agreement on the basis of payment of costs incurred ( 34 ) to the undertaking Colas . ( 35 ) In addition, the applicant considers implausible the Commission' s claim to the effect that its action was motivated solely by concern to help to procure a friendly settlement of the dispute between the applicant and the Rwandan authorities; it takes the view that in the course of the execution of the project the Commission gradually abandoned its neutral stance to side with Rwanda . Lastly, at the hearing the applicant referred to a number of documents, which the Commission produced at the request of the Court ( 36 ) ( I shall refer to them as "the Commission papers "). According to the applicant, those papers prove that in cancelling the contract the Rwandan authorities followed the guidance of the Commission, ( 37 ) and show the Commission' s "partiality ". ( 38 )
24 . I have already pointed out that the applicant has, in my view, not provided sufficient evidence to support its allegation . Not only are the documents which it cites not capable of proving its version of the facts but, in addition, it appears both from the documents which it cites and from a number of other documents before the Court that the Commission' s version ( to the effect that its conduct was motivated solely by the concern to reach a friendly settlement of the dispute between the applicant and Rwanda ) is the right one .
The documents in the Commission papers, especially, leave nothing to be desired in the way of clarity . ( 39 ) There is nothing in those documents to suggest that the Commission took sides during the development of the dispute between the applicant and the Rwandan authorities, ( 40 ) which, moreover, was confirmed by the applicant itself in a letter which it sent in May 1981 to the EDF in Brussels . ( 41 ) Indeed they show that the Rwandan authorities' decision of 6 June 1981 to cancel the contract with the applicant was not taken on the recommendation or with the approval of the Commission . The most light is cast on that point by document No 32 in the Commission papers, a letter dated 29 April 1981 from the Commission' s delegate, in which the latter reports to the EDF on his efforts to dissuade the Rwandan authorities from carrying out their decision to cancel the contract in spite of the Commission' s efforts at reconciliation . The conclusion expressed in the letter is as follows ( translation ):
"In any event I shall do all I can, not to influence the administration, but to make it aware of its responsibility having regard to the implications and consequences of each option ...". ( 42 )
That attitude is systematically confirmed by the other documents before the Court . ( 43 ) Moreover, it also appears that only as from the time of the Rwandan authorities' decision to cancel the contract did the Commission ( which had doubts about the legality of such unilateral cancellation ) give the Rwandan authorities assistance in order to avoid them compromising even further their ( legal ) situation . ( 44 ) The assistance consisted inter alia in the Commission' s providing the Rwandan authorities with a draft of a letter notifying the applicant of the cancellation . ( 45 ) It is hard to deny that that course of action was consonant with the role of the Commission . It had reasons for fearing that the funds made available by the Community might be unnecessarily wasted as a result of ill-considered action on the part of the Rwandan authorities, and was justified in acting in order to minimize the adverse effects of such action, especially since action on its part could no longer damage the interests of third parties given that the decision to cancel the contract had already been taken by the Rwandan authorities .
25 . Admittedly some of the reports of the Commission' s delegate contain a number of criticisms with regard to the applicant' s execution of the works . ( 46 ) In itself such criticism does not, however, constitute evidence of partiality on the part of the Commission ( or, a fortiori, of the Commission' s inciting or instigating the cancellation of the contract ). On the contrary, it is consonant with the managerial duties of the Commission, which must only grant financing which is "necessary to ensure the proper execution of approved projects or programmes in the best economic and technical conditions ". ( 47 ) Furthermore, the Commission' s criticism was probably not unjustified, since the Arbitration Tribunal held that the poor workmanship of the project was attributable to the extent of 25% ( Lot No 1 ) and 48% ( Lot No 2 ) to the conduct of the applicant . ( 48 )
It appears from the foregoing that the applicant has not shown that the Commission encouraged or instigated the Rwandan authorities to cancel the contract for Lot No 1 .
Second hypothesis : can the cancellation of the contract be attributed to the Commission?
26 . The applicant has extensively argued that the Commission should be held liable in solidum for the contractual damage which it sustained . In so doing, it bases itself on a twofold argument . In the first place, it claims that the provisions of Lomé I ( and the other provisions applicable to the contracts ) impose "joint responsibility" on the Commission and the contracting authority/ACP State for all damage caused to the contractor in connection with the contract . Secondly, it argues that, notwithstanding the provisions of Lomé I, the Commission interfered in such an unlawful manner with the execution of the agreement that it must be held to be liable together with the contracting authority for the whole or at least part of the contractual damage sustained by the applicant .
27 . The applicant' s argument does not convince me . As far as the first limb of its argument is concerned, I would refer to my general sketch of the legislative framework of Lomé I ( Sections 19 to 21 above ). Certainly there is "close collaboration" between the Community and the ACP States as regards the implementation of financial and technical cooperation . However, that close collaboration does not preclude ( as I have already mentioned ) the existence, in the implementation phase of an actual project, of a relatively precise division of powers between the Community ( represented by the Commission or, more specifically, the EDF ) and the ACP State concerned . The Court has confirmed that in the implementation phase only the ACP State acts as contracting authority; the Commission' s role is confined to taking the necessary financing decisions for the implementation of the projects with a view to the proper and careful application of the funds made available by the Community . ( 49 ) There is no reference in the provisions of Lomé I to joint responsibility vis-à-vis the contractor; under the system of Lomé I "close collaboration" is restricted to the parties to the contract . ( 50 )
In actual fact, though, the applicant does not seem to assume joint responsibility on the part of the Commission and the Rwandan authorities . If that were the case, Rwanda' s breaches of contract ( as established in the arbitration proceedings ) would be imputed to the Commission . The applicant makes no reference to such imputation, but mentions ( this being the second limb of its argument ) a number of acts of the Commission from which it appears in its view that the Commission' s delegate wrongfully interfered with the exercise of the powers conferred on Rwanda . However, the facts cited by the applicant are by no means such as to show that the Commission assumed the powers of the contracting authority in such a way that the decision to cancel the contract must also be imputed to it . Thus the applicant points out that the Commission' s delegate asked that all administrative orders should be forwarded to him for countersignature before they were carried out . ( 51 ) I cannot see why that request should be unlawful, since the issue of an administrative order has financial consequences and the delegate has to take care, on behalf of the Commission, that the funds made available by the EDF are spent in a sound manner . The applicant claimed, but has not established, that the Commission' s delegate misused that prior check so as to enable him to interfere with the duties of the contracting authority . For example, no evidence has been adduced of a refusal ( even a temporary refusal ) to countersign an order or of an instance of countersignature being made subject to conditions . I also consider it curious that the applicant has failed to produce to the Court a single document showing it to have expressed any protest or reservation throughout ( or even after ) the implementation of the project about that manner of proceeding of the Commission, which it has described in these proceedings as being particularly serious .
The applicant has also accused the Commission of a number of other instances of "unlawful interference" with the duties of the contracting authority : it actively participated in site meetings, putting forward proposals for expropriation and alternative technical solutions and making partial amendment of the project subject to prior agreement of the EDF . In this respect, too, I can find no serious evidence for the applicant' s claims in the documents before the Court . It refers to the Minutes of four different site meetings . At two of those meetings it appears that the Commission delegate only made proposals ( 52 ) or expressed reservations . ( 53 ) I cannot see how this proves that the Commission interfered with the duties of the contracting authority . At another meeting the Commission appears to have drawn to the attention of the Rwandan administration the fact that the costs resulting from the long-term freezing by the administration of invoices of Spie-Batignolles would possibly not be borne by the EDF . ( 54 ) That observation seems to me to be fully consonant with the role of the Commission' s delegate and not to detract in any way from the actual duties of the contracting authority . Apart from that, I am curious how that action on the part of the Commission, which in the normal course of events should have caused the applicant to be paid more swiftly for the work it carried out, could have caused it to sustain damage . Lastly, the applicant refers to a reservation expressed by the Commission delegate at a site meeting on 19 February 1980 with regard to the financing of a modification in the design of the verges . ( 55 ) It is to be gathered from a handwritten annotation that the agreement of the delegate was valid only for one kilometre and a reservation is entered as regards the rest . ( 56 ) Since that reservation relates to a unilateral modification by the contracting authority of the manner of execution of the project, it was, in my view, not necessarily unlawful . Furthermore, that reservation was not an absolute veto : agreement was given for the construction of one kilometre, so that the expediency of the modification could be seen from the construction of that short stretch . This call for caution would not appear to be incompatible with the Commission' s duty to ensure that EDF funds are properly employed . Apart from that, it is striking in this connection also that at no time during the execution of the work did the applicant question the conduct of the Commission or its delegate, quite the contrary : I have already referred to a letter from the applicant to the Commission in which the former confirms the Commission' s neutral attitude and even asks it to act as a mediator between itself and the Rwandan authorities . ( 57 )
Third hypothesis : the cancellation of the contract was made inevitable
28 . Earlier ( in Sections 26 and 27 ) I reached the conclusion that there is no evidence of the Commission' s having interfered with the duties of the contracting authority . It follows at the same time that the alleged "hindrance" of the work cannot have been caused by such conduct on the part of the Commission . The applicant considers, however, that the Commission is also to blame for another fault which led to the unsuccessful outcome of the project . It starts out from arbitral award No 6 of 24 February 1987, from which it appears that the flaws in the geological study in the tender dossier "misled" the applicant, resulting ultimately in the project' s miscarrying . Although the study was not carried out by or by order of the Commission, the applicant considers nevertheless that the Commission is answerable for its detrimental effects . It bases its argument on Article 53 of Lomé I, which provides that the Community is to "appraise projects ... in close collaboration with the ACP States ". According to Article 53(2 ) ( c ) the aim of that appraisal is, inter alia, "to verify that the conditions guaranteeing the successful conclusion and the viability of the projects ... are met ".
29 . Here, too, the applicant' s argument is based on a misinterpretation of the applicable provisions . As I stated earlier ( in Section 20 above ), Article 53 applies to the preparatory phase of a project, when, in particular, it is examined whether the project is feasible from the economic and technical viewpoints and whether it is consonant with the specific objectives of the State concerned . However, in that phase the actual plan is not yet laid down for the implementation of the project; that plan is part of the implementation phase of the project and therefore comes under the responsibility of the ACP State concerned . Although the Commission does have the duty of encouraging cooperation between consultants and experts of Member States and ACP States, ( 58 ) it is not responsible for the technical soundness of the tender dossier and the geological studies which it contains; such flaws can in principle only be relied on against the contracting authority ( the ACP State concerned ).
Admittedly, the Commission has to approve the tender dossier before invitations to tender are issued, ( 59 ) but that approval relates to its supervisory role in the financial area . It is obliged to verify the technical concept of a project only in so far as it might give rise to errors in the financing of the project ( for further details see Sections 31 and 32 ). In addition, the Commission, as the agency financing the project, could be held liable in the event that it appeared that it financed a project which it knew or should have known ( in view of its role in the preparatory phase ) was not viable .
As can be seen, the applicant' s argument takes a completely different tack . Consequently, the applicant has not adduced any data pointing to liability on the part of the Commission . According to the applicant' s own assertions, the main flaw in the geological study consisted in its partly superficial and partly wrong investigation of a number of strata which were to provide surfacing material for the roads . In this connection, the applicant refers to arbitral award No 6, from which it appears that the Rwandan authorities expressly refused to finance a more thorough study and also failed to use more accurate investigations when drawing up the tender dossier . ( 60 ) In the arbitral award it is considered in regard to that point that not even a specialized undertaking such as Spie-Batignolles should have noticed those flaws, in particular because Rwanda was assisted by a particularly competent team of consultants with long experience of carrying out works in Africa . ( 61 ) That which applies to a specialized undertaking commissioned to carry out works seems to me to apply to an even greater extent to the Commission, whose main reponsibility is confined to the financing of the project .
Fourth hypothesis : could and should the Commission have averted the cancellation of the contract?
30 . Lastly, the applicant argues that the Commission was under a "duty to intervene" by taking ( technical and financial ) adaptation measures in order to remedy the difficulties which arose in connection with the execution of the project . The applicant maintains that the Commission' s failure to intervene in that way caused it to incur liability .
31 . I could observe, in common with the Commission, that there seems to be a contradiction between the applicant' s argument with regard to the Commission' s alleged unlawful interference with the duties of the contracting authority ( Section 26 above ) and the duty to intervene in question here . It is more significant, however, that in this last hypothesis, too, the applicant' s arguments are based on a misinterpretation of the applicable provisions . The most striking is the reference to Article 57 of Lomé I, a provision which according to its wording applies to completed projects and work carried out and not to work in the course of being carried out . In addition, the applicant also refers to Articles 29, 31 and 33 of Protocol No 2 to Lomé I . Article 29 provides that the EDF is to "take any adaptation measures ... which prove necessary to ensure the proper execution of ... projects ... in the best economic and technical conditions ". Article 31(6 ) provides that the delegate of the EDF is to "make sure, on behalf of the Commission, that the projects ... financed from the Fund' s resources are executed properly from the financial and technical angles ". Article 33 states that if it appears impossible to complete a project for the funds committed or to cover the excess expenditure by drawing on the national resources of the ACP State concerned, the Community may "as an exceptional measure" take a decision to commit additional funds .
It should have become quite clear by now from the general framework which I adumbrated above and from the further discussion of a number of specific provisions that the duties of the Commission delegate during the execution of a project are limited to taking any commitment decisions "which prove necessary to ensure the proper execution of approved projects ... in the best economic and technical conditions" ( Article 29(1 ) of Protocol No 2 ). It is not hard to appreciate that that definition of the delegate' s duties precludes the Commission from interfering with the technical execution of the project, since that is part of the "sovereign powers" of the ACP State concerned . ( 62 ) Naturally, neither may the Commission use its own ( financial and management ) duties to achieve that outcome by indirect means, as in fact the applicant itself has affirmed ( see above, the second hypothesis, Sections 26 and 27 ).
32 . For what "intervention" on the part of the Commission does the legislative framework of Lomé I still leave room? In my estimation, the term "necessary" in Article 29 of Protocol No 2 ( cited in the previous paragraph ) relates chiefly to containment of expenditure : the EDF finances the project but has to make sure that no more Community funds are spent than are necessary for the execution of the project in the best conditions . Articles 29, 31 and 33 of the Protocol, invoked by the applicant, have the same aim, which moreover is consonant with the general philosophy of Lomé I : rather than imposing specific solutions on the ACP State concerned, it is granted a limited amount of funds to pay, in principle, for the whole project ( overshooting is possible only in exceptional cases, see Article 33 ). Admittedly, cost saving is not the first priority : the Community makes sufficient funds available in order to guarantee the execution of the work in the best conditions ( see Article 29(1 ) ). Nevertheless, in the course of all this, the supervision of the delegate is not so much for the benefit of the contracting authority . "The Delegate shall make sure, on behalf of the Commission, that the projects ... financed from the Fund' s resources are executed properly from the financial and technical angles" ( Article 31(6 ), my emphasis ), in order to avoid unnecessary calls on the Community' s funds .
Admittedly the legislative framework does not exclude the possibility that under certain ( extreme ) circumstances it may be necessary for there to be intervention on the part of the delegate which will also have an impact on the execution of the contract . That is the direction taken by the applicant' s argument : it maintains that a fundamental revision should have been effected of the funds earmarked for the project . However, apart from a general reference to the severe difficulties encountered during the execution of the project, it adduced no specific evidence to support that claim . There is no evidence in its description of the facts ( 63 ) or in arbitral award No 6 ( 64 ) that the management of the funds caused the difficulties encountered by the project . Naturally, it is likely that an additional "capital injection" by the EDF would have resulted in a settlement of the difficulties between Rwanda and Spie-Batignolles ( at the Community' s expense ). But it should be clear from the above discussion that it is not the task of the EDF to "resolve" all problems arising between the contracting authority and the contractor by automatically increasing the funds committed for the project . Moreover, contrary to the applicant' s assertions before the Court, the Commission did intervene to remedy the problems which arose, as can be seen from the following examples . The Commission took part in the meeting held in Rwanda on 11 and 12 May 1981 with a view to effecting a reconciliation . ( 65 ) It endeavoured to reach a friendly settlement of the differences between Rwanda and Spie-Batignolles, with the very aim of averting the cancellation of the contract by the Rwandan authorities . ( 66 ) The Commission also organized a "final" meeting in Brussels on 13 to 15 May 1981 at which agreement was nearly reached between Spie-Batignolles and the Rwandan authorities on an amendment (" avenant ") to the two contracts . ( 67 )
33 . Since it has not been shown that the management of the funds committed to the project caused or contributed to the difficulties, the applicant would have to have shown that the financing approved for the project by the EDF was ( ab initio ) manifestly insufficient for its execution . The applicant has also failed to show that that was the case, even though it argued in detail that the Commission must have realized that the geological study ( and the tender dossier as a whole ) was defective . In that connection I earlier reached the conclusion ( in Section 29 ) that the Commission cannot be accused of not having observed flaws in the technical conception of the project . The applicant has also failed to prove on the basis of the remainder of the tender dossier or other factors that the financial planning of the project was manifestly inadequate; rather, each of the difficulties with the execution of the project appear to be the result of circumstances that occurred or were discovered subsequently . Consequently as regards that last hypothesis as well, I consider that the Commission was not under a duty to take action which might have averted the cancellation of the contract .
Liability of the Commission for all or part of the other damage sustained by the applicant
34 . In case the Court should hold that the applicant' s claims for compensation for "additional costs" which it incurred as a result of the Commission' s conduct ( Section 7, above ) are not time-barred, I must consider its arguments with respect to the substance as regards that point . However, I shall be very brief since its arguments with regard to that point do not differ from the arguments which it relied on in order to impute the cancellation of the contract to the conduct of the Commission .
Admittedly, as far as this point is concerned there is not such a heavy evidential burden on the applicant : it does not have to prove that the Commission' s faults caused the cancellation of the contract, but that those faults caused part or all of the damage which is the subject of the arbitration proceedings . However, it appears from my examination set out above that the applicant has not only failed to prove that the Commission was responsible for the cancellation of the contract, but even that the Commission acted wrongfully in any way in connection with the execution of the two projects . In fact, we have seen that there is no evidence that the Commission wrongfully interfered with the execution of the contract ( Sections 26 and 27 ), that the Commission was at fault in connection with the preparation of the tender dossier ( Sections 28 and 29 ) or that the Commission fell short of its obligations with regard to the management of EDF funds during the execution of the two projects ( Sections 30 to 33 ). In my estimation, the applicant' s claim with regard to this point must therefore also be dismissed .
Conclusion
35 . In the light of the foregoing I propose that the Court should :
( 1)declare the applicant' s action to be unfounded in so far as it seeks to have the Commission held liable for the cancellation by the Rwandan authorities on 6 June 1981 of the contract for Lot No 1 ( EDF project No 4.100.041.43.14 );
( 2)dismiss the remainder of the applicant' s action as being out of time;
( 3)order the applicant to pay the costs .
(*) Original language : Dutch .
( 1 ) OJ 1976, L 25, p.1 .
( 2 ) See Section II of the Report for the Hearing .
( 3 ) The parties agree that that formal request is an "application" within the meaning of Article 43 of the Statute of the Court of Justice of the European Communities which extends the period of limitation for proceedings in matters arising from non-contractual liability from two months ( as laid down in in Article 173 and having regard to the second paragraph of Article 175 ). The application made to the Court was registered at the Court Registry on 1 August 1986, after the Commission rejected the formal request on 5 July 1986 .
( 4 ) See the judgment of 27 January 1982 in Joined Cases 256, 257, 265 and 267/80 and 5/81 Birra Wuehrer v Commission (( 1982 )) ECR 85, paragraph 10 .
( 5 ) A period of five years starting on 6 June 1981 does not expire until the end of the day of 6 June 1986 ( the date on which the applicant' s formal request was received by the Commission ). See the judgment of 15 January 1987 in Case 152/85 Misset v Council (( 1987 )) ECR 223, in particular paragraphs 7 and 8 .
( 6 ) See as regards Lot No 1, Annex 25 to the application, especially pp . 5 and 6, and as regards Lot No 2, Annex 26 to the application, especially p . 6 .
( 7 ) See Annex 39 to the application .
( 8 ) See p . 10 of the Commission' s conclusions relating to the objection of admissibility . This was not contested by the applicant, which states in its application that it received no further administrative order after 6 December 1980 .
( 9 ) See Annex 25 to the application ( Lot No 1 ), p . 2, and Annex No 26 ( Lot No 2 ), p . 6 .
( 10 ) See Annex 28 to the application for the Minutes of that meeting .
( 11 ) Incidentally, the grant of those two requests was the applicant' s main claim in the arbitration procedure against Rwanda ( alongside the claim relating to the cancellation by the Rwandan authorities of the contract for Lot No 1, which will be discussed later ). This is an indication that no other damage materialized between December 1980 and 6 June 1981 .
( 12 ) More specifically, the Court decided in Birra Wuehrer that the period of limitation for compensation for damage caused by a regulation did not begin with the "abstract" adoption or applicability of the regulation but at the time when the applicants in that case experienced the "actual" injurious effects of the application of the relevant regulation ( see paragraph 10 of that judgment ).
( 13 ) For further details see note 35 ECR I-208 and the passage relating thereto .
( 14 ) Judgment of 2 June 1976 in Joined Cases 56 to 60/74 Kampffmeyer v Commission and Council (( 1976 )) ECR 711 .
( 15 ) That judgment was confirmed by the judgments of 2 March 1977 in Case 44/76 Milch -, Fett - und Eierkontor v Council and Commission (( 1977 )) ECR 393, in particular paragraph 8, and 29 January 1985 in Case 147/83 Binderer v Commission (( 1985 )) ECR 257, in particular paragraph 19 .
( 16 ) See for example the judgment of 17 December 1981 in Joined Cases 197 to 200, 243, 245 and 247/80 Ludwigshafener Walzmuehle v Council and Commission (( 1981 )) ECR 3211, paragraph 18 .
( 17 ) Case 33/82 Murri frères v Commission (( 1985 )) ECR 2759 .
( 18 ) See paragraphs 35 to 38 of the judgment in Case 33/82, cited above .
( 19 ) I am assuming here that the Arbitration Tribunal of the International Chamber of Commerce will declare that the Rwandan authorities are liable for all the damage to which the applicant' s claim in the arbitration procedure relates as regards the cancellation of the contract . If that is not so, the problem considered here arises only in respect of that part of the damage for which both the other party and the Community are held to be liable .
( 20 ) See in this connection the judgment of 14 July 1967 in Joined Cases 5, 7 and 13 to 24/66 Kampffmeyer and Others v Commission (( 1967 )) ECR 245, especially at p . 266 . See also the Opinion of Mr Advocate General Gand (( 1967 )) ECR 269, at pp . 279 and 280 .
( 21 ) What is involved here is the "negative" conditio sine qua non test; the reverse is not always true . See the Opinion of Mr Advocate General Roemer in Joined Cases 29, 31, 36, 39 to 47, 50 and 51/63 Usines de la Providence v High Authority (( 1965 )) ECR 948, at p . 954; see also the Opinion of Mr Advocate General Gand in Joined Cases 5, 7 and 13 to 24/66 Kampffmeyer v Commission (( 1967 )) ECR 269, at pp . 278 and 279 .
( 22 ) See the judgment of 10 May 1978 in Case 132/77 Exportation des sucres v Commission (( 1978 )) ECR 1061, paragraphs 22 to 27 .
( 23 ) See the judgment in Exportation des sucres v Commission, cited above .
( 24 ) See Article 51 of Lomé I .
( 25 ) See Article 52 of Lomé I .
( 26 ) See Article 53 of Lomé I .
( 27 ) See Article 54 of Lomé I . It is certainly not inconceivable for a technical study to be commissioned at that stage in order to examine whether the project is technically and financially feasible . The "geological study" of which so much is made in this case ( and which will be discussed later ) is, however, not a "feasibility study" of that type but a technical study, which is normally carried out in the implementation phase of the project and is incorporated in the tender dossier ( see later ).
( 28 ) See Article 56 of the "General Conditions for works and supply contracts concluded with the authorities and financed by the European Development Fund", as stated to be applicable by Council Regulation ( EEC ) No 282/72 of 31 January 1972 ( JO 1972, L 39, p . 1, hereinafter referred to as "the General Conditions "). As far as the execution of the two projects giving rise to these proceedings is concerned, their execution was directed by the Rwandan Ministry of Public Works and Equipment . However, the Ministry delegated that task to the German engineering consultants Rhein-Ruhr Ingenieur GmbH (" Rhein-Ruhr "), which was also the author of the much discussed geological study ( more details of which are given in Sections 28 and 29 below ). See Annexes 1 and 2 to the application ( text of the letters notifying the award of the contracts to Spie-Batignolles ), Section 7 .
( 29 ) See Article 29 of Protocol No 2 to Lomé I on the application of financial and technical cooperation ( OJ 1976, L 25, p . 104 ).
( 30 ) Let it be noted in passing that that division of functions is somewhat qualified in Protocol No 2 to Lomé I ( cited in note 29 ). In order to enable the Commission to perform its management role efficiently, it is also involved in the selection procedure ( See Article 25 of the Protocol ) and in the negotiation and conclusion of the contract with the party selected ( see Article 26 of the Protocol ). As also appears from the judgments of the Court cited hereinafter, however, those provisions do not detract from the primary responsibility of the ACP State concerned .
( 31 ) See the judgments of 19 September 1985 in Case 33/82 Murri frères v Commission, cited in note 17, in particular paragraphs 33 and 34, of 24 June 1986 in Case 267/82 Développement SA and Clémessy v Commission (( 1986 )) ECR 1907, in particular paragraph 25, of 10 July 1985 in Case 118/83 CMC v Commission (( 1985 )) ECR 2325, in particular paragraph 28, and of 10 July 1984 in Case 126/83 STS v Commission (( 1984 )) ECR 2769, in particular paragraphs 13 to 18 . Although only the judgment in Développement SA and Clémessy is concerned with the application of Lomé I, it is stated in the judgments cited that that principle applies in the same way to the various Conventions of Lomé and Yaoundé .
( 32 ) Judgment in CMC v Commission, cited in note 31, paragraph 31; judgment in Murri frères, ibid ., paragraph 35; judgment in Développement SA and Clémessy, ibid ., paragraphs 16 and 17 .
( 33 ) The applicant does not explain the way in which those circumstances could cause the Commission to incur liability or what documents ( if any ) evidence the "particularly abusive circumstances ".
( 34 ) For the explanation of this expression, see Article 11 of the General Provisions, cited above, note 28 . The agreement with the applicant was a unit-price contract as defined in that article .
( 35 ) I understand the applicant' s argument with regard to that point as follows : Rwanda' s decision to cancel the contract with the applicant was based on an undertaking by the Commission that the project would be completed by another undertaking and financed by the Community, and neither the Commission' s undertaking nor the mode of financing complied with the applicable rules . However, the applicant has adduced no evidence at all of this . Moreover, the Commission stated at the hearing that the award to Colas was made in accordance with a tender procedure .
( 36 ) See the Report for the Hearing, Section I(B ) in fine .
( 37 ) In making this allegation the applicant refers to document No 33 of the Commission papers . See the discussion of that and other documents later in this Opinion .
( 38 ) In making this allegation the applicant refers to document No 21 in the Commission papers . See the discussion of that and other documents later in this Opinion .
( 39 ) I am conscious of the fact that documents drawn up by the Commission or its delegate do not have absolute probative force; in other words, they cannot be relied on completely in order to discharge the Commission . Nevertheless it should be borne in mind that at the time of the execution of the contract the applicant and the Commission were not in dispute . Consequently, documents which were drawn up by the Commission at unimpeachable times and in unimpeachable circumstances may, in my view, be regarded as being prima facie reliable, at least as regards the question of the Commission' s stance and conduct at the time when the contract was cancelled .
( 40 ) For this point I would refer to the monthly reports of the Commission' s delegate, which are contained in the Commission papers .
( 41 ) The letter in question was from the Président-directeur général of Spie-Batignolles-Travaux publics to the Deputy Director-General of the EDF ( Annex 76 to the reply ). At the bottom of p . 3 of that letter it is stated that Spie-Batignolles never intended to equate the Commission' s position to that of Rwanda and that it addresses that letter to the Commission simply because as the body providing the finance it is best placed to initiate a dialogue between the applicant and the Rwandan authorities . It does not appear from the information available to the Court that the stance taken by the applicant in the aforesaid letter was based on mistaken factual assumptions relating to the role and conduct of the Commission .
( 42 ) See the second paragraph on p . 2 of that document .
( 43 ) See for example document No 26 in the Commission papers, a telex message dated 10 February 1981, in particular the closing paragraph and Annex I to document No 33 in the Commission papers, an ( internal ) memorandum dated 12 May 1981 of the Commission' s departments, drawn up to prepare a ( final ) meeting, called on the Commission' s initiative with a view to reconciling the parties . It is clear from that memorandum that the Commission neither adopted a position nor sought to recommend a particular option to Rwanda; it simply wished to explain the various possibilities for settling the dispute between the applicant and the Rwandan authorities .
( 44 ) This is clear, for example, from document No 33 in the Commission papers, a memorandum dated 2 June 1981 from a Deputy Director-General of the EDF to the Commission delegate in Rwanda . See also Annex V to that memorandum, a telex message of 20 May 1981 between the same persons, especially the last five lines .
( 45 ) See for example Annex IV and V of document No 33 in the Commission papers to which I have already referred .
( 46 ) For instance, at the hearing the applicant referred to a written annotation ( perhaps added by an official of the EDF ) on a letter of 18 November 1980 from the Commission' s delegate to the competent official of the EDF in Brussels ( document No 21 in the Commission papers ).
( 47 ) Article 29 of Protocol No 2 to Lomé I, cited in note 29 above .
( 48 ) See Annex 51 to the reply for the text of the award of the Arbitration Tribunal .
( 49 ) See Article 31(6 ) of Protocol No 2 to Lomé I ( cited in note 29 ) in conjunction with Article 29(1 ).
( 50 ) Judgment in STS v Commission, cited in note 31 above, paragraph 15 . Admittedly that passage from the judgment was a premiss in the conclusion that within the legislative framework of the Lomé Conventions measures of the Commission cannot be "of direct concern" to undertakings ( within the meaning of Article 173 and not Article 215 of the Treaty ). Nevertheless it follows from that and the more recent judgments that the relevant legislative framework cannot give rise to liability in solidum on the part of the Commission and the relevant ACP State .
( 51 ) See Annex 39 to the application for a copy of the letter in which that request was made .
( 52 ) See Annex 40 to the application, Section 3(c ), p . 2 of the Minutes .
( 53 ) See Annex 41 to the application, Section B(2 ), p . 1 of the Minutes .
( 54 ) See Annex 42 to the application, Section 3(e ), p . 5 of the Minutes .
( 55 ) See Annex 43 to the application, at the bottom of p . 5 and Section B(I)(d ) on p 1 .
( 56 ) In its application, the applicant maintains that the Commission "imposed" that modification . That is manifestly wrong, since according to the Minutes the modification was decided upon by the Rwandan administration at the proposal of the applicant .
( 57 ) See note 41, p . I-209 .
( 58 ) See Article 27 of Protocol No 2 to Lomé I, cited in note 29 above .
( 59 ) See Article 30(2 ) of Protocol No 2 to Lomé I, cited in note 29 above .
( 60 ) See Annex 51 to the reply, pp . 33 and 34 .
( 61 ) The consultants were Rhein-Ruhr . See note 28, p . I-207 .
( 62 ) See Section 21 above and the case-law cited in note 31, p . I-207 .
( 63 ) See application, pp . 2 to 6 .
( 64 ) Annex 51 to the reply .
( 65 ) See the report of the Commission' s Chef de Mission, document No 31 in the Commission papers .
( 66 ) See in particular document No 32 in the Commission papers .
( 67 ) See document No 33 ( with annexes ) in the Commission papers .
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