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Key facts of the case:

  1. On 4 February 2008, the Council of the European Union adopted Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo.
  2. As part of that mission, by a restricted procedure, an invitation for tenders was published which concerned a project entitled ‘Helicopter support to the Eulex mission in Kosovo’, and contemplated the making of a service contract. Elitaliana SpA (‘Elitaliana’) participated in the tender process. Its tender was placed second. The Eulex Kosovo Head of Mission awarded the contract at issue to the tenderer which had been placed first.
  3. Elitaliana brought an action against Eulex Kosovo before the General Court of the European Union.
  4. During the proceedings before the General Court, Eulex Kosovo raised an objection of inadmissibility on the basis, first, that Eulex Kosovo did not have legal capacity to be a defendant, and, secondly, that the General Court had no jurisdiction in respect of measures relating to the common foreign and security policy (CFSP).
  5. By order of the General Court in Elitaliana v Eulex Kosovo (the ‘order under appeal’), the action was dismissed as inadmissible.
  6. By the present appeal, Elitaliana asks the Court of Justice to set aside the order under appeal.
  7. In this appeal, the Court is called on to consider the question of whether Eulex Kosovo is legally responsible for the decisions taken by the head of that mission, and more specifically whether an action for annulment pursuant to Article 263 TFEU may be brought against Eulex Kosovo, an issue which does not seem to have arisen previously. The Court must also make a determination on Elitaliana’s arguments concerning infringement of the fundamental right to an effective remedy, and the existence of an excusable error on Elitaliana’s part in relation to the identification of the defendant in the proceedings before the General Court.

Results (sanctions) and key consequences of the case:

...I suggest that the Court should dismiss the action and order Elitaliana SpA to pay the costs.