In addition to this obligation, economic operators from third countries who have not concluded an agreement to open the EU public procurement market or whose goods, services and works are not covered by such an agreement do not have secure access to procurement procedures in the EU and can be excluded. Furthermore, in the observations on the plea of admissibility raised by the Commission, VG also drew the Court`s attention to the decision of the President of the Court of First Instance on the application for legal aid. 42. Paragraph 15 of that decision states that the Commission has decided not to take a decision at this stage on the question of the classification of the legal relationships resulting from the letter of agreement. The President of the Court of First Instance concluded that the Commission considered that such a finding could be made only after a thorough examination of the letter of agreement. ( 43 ) The President of the General Court concluded that `at this stage, it was not apparent from an initial examination that the action for damages which the applicant wished to bring before the Courts of the European Union was an action for damages based objectively and in its entirety on rights and obligations of contractual origin`. ( 44 ) I therefore understand VG`s confusion with regard to the contested decision, which, however, as far as I recall, held that VG`s action was manifestly inadmissible. This scheme only applies to products originating in third countries which are not covered by an agreement guaranteeing EU companies comparable and effective access to the markets of those third countries. 1.2.1. Procurement under intergovernmental agreements […] 2. Member States shall take appropriate measures to ensure that, when performing public contracts, economic operators comply with the applicable environmental, social and labour law obligations laid down in Union, national, collective agreements or international environmental, social and labour law rules listed in Annex X. The provisions relied on should also have been taken into account by the General Court, without, however, being decisive in themselves.
The General Court`s analysis is also incomplete in that regard. ( 39 ) VG criticises the Commission for having opposed Article 41 of the Charter, the general principles of sound administration and respect for the rights of the defence, art. 16 of the Code of Good Administrative Behaviour, the principles of due diligence and the presumption of innocence, as well as the obligation to state reasons and the principle of proportionality – in Ms X`s handling of the complaint. Those rules clearly demonstrate that VG`s application was not based on a contract, since it was based on rules considered to govern the Commission`s acts as an administration and was not based on rules arising from the alleged contract. In particular, VG did not object to any breach of the letter of agreement. On this point, I am somewhat confused by the Commission`s reasoning, which claims that the basis of the legal obligations relied on by VG should not be recognised if the action were to be regarded as non-contractual. For example, I find it hard to believe that the Commission can ignore the fact that the right to good administration or respect for the rights of the defence also applies to it when acting in a non-contractual context. In so far as they are covered by Annexes 1, 2, 4 and 5 (8) and by the general notes to Annex I of the European Union relating to the GPA and by other international agreements to which the Union is bound, contracting authorities shall accord to the works, supplies, services and economic operators of the signatories to those agreements treatment no less favourable than that of: which is granted to the works; Union supplies, services and economic operators.
In essence, VG claims that the General Court wrongly classified the letter of agreement as a contract contract, even though they were non-binding guidelines adopted unilaterally by the Commission and governing the operation of the Team Europe network. The Commission has never argued that the relationship is contractual in nature, as stated in paragraph 21 of its written pleadings before the Ombudsman and paragraph 21 of its pleadings before the Ombudsman. 15 of the Tribunal`s order on vg`s application for legal aid; ( 48 ) The Memorandum of Understanding is merely a summary of The rights and obligations of Team Europe and not those governing the special relationship between the Commission and the AG; it does not provide for a penalty for its violation, nor the applicable law or the competent courts; the Memorandum of Understanding uses the term ”obligations” and not ”obligations”, which refers to mere rules of conduct and not to actual legal relations between the persons concerned. The Commission belatedly changed its position, citing the contractual nature of the letter of agreement. The common intention of the parties has never been to bind themselves contractually. Intention is a decisive factor in the classification of an act of contract, as is apparent from paragraph 102 of the principles of European contract law. 49 The Court of First Instance therefore wrongly classified the letter of accession as a contract, distorted that letter and breached its obligation to state reasons. The contested decision did not specify the applicable law in order to classify the agreement as a contract, which is necessary if that letter is – quod non – a contract. The Commission maintains that French law is applicable.
However, under Articles 1101 (50) and 1156 (51) of the French Civil Code, it would not be possible to classify the declaration of agreement as a contract of contract in the sense of French law if VG intends to undertake to do so and there is no reason for it to believe that a contract has been signed, the content of which has been determined solely by the Commission, which has never referred to its contractual nature. In addition, a contract provides for enforceable obligations under French law. ( 52 ) However, the letter of consent does not oblige compliance with the rights and obligations arising from this lettering, nor does it provide for sanctions or enforcement, and either party may withdraw from it at any time. The contractual nature of the letter of the agreement is therefore not apparent from the intention or will of the parties or from the text drawn up by the Commission. It follows that the agreement is also not classified as a contract under French law. The General Court therefore also distorted the document and erred in law in holding, in paragraph 39 of the order under appeal, that the action concerned a claim for damages of a contractual nature. a joint guarantee by the beneficiaries of an action who are parties to the same grant agreement. The distortion is therefore inextricably linked to the assessment of the facts.
However, vg contends that the agreement was distorted by the court because of its legal ”classification” as a contract. That criticism does not therefore constitute a distortion of the facts in the classical sense of the case-law of the Court cited above, but an error in the classification of the statement of agreement. Thus understood, it does not contain any complaint different from that already examined in the context of the second part of the second plea and therefore does not require further discussion. However, if the complaint alleging infringement of the obligation to state reasons must be upheld, it is not because the General Court did not reply to all the arguments put forward by VG, but because the wording of the contested decision does not set out correctly the reasons which the General Court relied on to rule on the contractual nature of the dispute solely on the basis of the letter of the agreement, namely the text of the agreement, which is obviously not contractual, and to go beyond the contradictory and very restrictive statements made by the Commission […].